What is Protected Conversation?

Full Definition

A protected conversation is a discussion between an employer and an employee about ending the employment relationship on mutually agreed terms -- typically as a prelude to a settlement agreement -- that cannot be referred to as evidence in a subsequent ordinary unfair dismissal claim, even if no settlement is ultimately reached and the employee later brings a claim. This protection comes from section 111A of the Employment Rights Act 1996, introduced in 2013, and its key advantage over the older common law concept of "without prejudice" discussions is that it does not require an existing dispute between the parties -- an employer can raise a protected conversation with an employee who has raised no grievance and shown no sign of a dispute, for example to explore an exit before performance or conduct issues escalate into a formal process. The protection has important limits. It only covers ordinary unfair dismissal claims -- it does not protect the employer if the employee later brings a claim for automatic unfair dismissal (for example, dismissal connected to whistleblowing or trade union activity), discrimination, or a breach of contract claim, so employers still need to be careful about what is said and how. The protection can also be lost entirely if there has been "improper behaviour" during the conversation, such as harassment, undue pressure (for example threats to dismiss within an unreasonably short timeframe if the offer is not accepted, or raising a protected conversation during a period of family leave), discrimination, or victimisation. Employees are typically given at least 10 calendar days to consider any offer made during a protected conversation, in line with Acas guidance, and are usually encouraged to take independent legal advice, which the employer will often contribute a fixed sum towards as part of a resulting settlement agreement.

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