What is a protected conversation? Employment relationships can be complex and there are likely to be occasions when an employer wants to have an honest, open conversation with an employee about ending their employment relationship. This might be because performance isn’t adequate or improving, there is a clash of personalities or team approach, or a dispute shows signs of escalating. However, saying the wrong thing at the wrong time can expose a business to risk, particularly claims of unfair dismissal or discrimination. This is where a protected conversation can be useful. It allows both employers and employees to discuss a potential exit settlement in a way that, in most circumstances, cannot later be used against them in an Employment Tribunal. Understanding the benefits (and limitations) of a protected conversation is therefore a valuable tool in navigating workplace issues. The legal framework Protected conversations were introduced by section 111A of the Employment Rights Act 1996 in 2013. They allow employers to have “off the record” discussions with employees about ending employment under a settlement agreement, even if no dispute exists. The purpose is to encourage open, pragmatic discussions that can lead to settlement without the stress and cost of formal processes. So, what does “protected” mean in practice? In principle, anything said or written in a protected conversation cannot be used as evidence in an ordinary unfair dismissal claim. For example, if an employee rejects an offer and later claims unfair dismissal, the tribunal will generally disregard those discussions, This can give employers confidence to propose settlements without fearing that it will be later used against them. However, protection is not absolute. Key limitations of protected conversations employers should know Type of claims It applies only to ordinary unfair dismissal claims. Conversations may still be admissible in discrimination, whistleblowing or breach of contract claims. Improper behaviour If either party acts improperly – such as bullying, harassment, threats of dismissal or undue pressure – the protection may be lost. Voluntariness Employees must be given time (the ACAS Code recommends 10 days) and access to independent legal advice. What is the difference between protected conversations vs. without prejudice? It is important to distinguish between these two concepts: Protected conversation: this is a statutory protection, available even if no dispute exists, but the protection is limited to claims of unfair dismissal. Without prejudice: this is a common law principle that applies ONLY where a dispute already exists but provides protection in a wider range of claims. Best practice is to state that discussions are held on both a “without prejudice” and “protected” basis. How to conduct a protected conversation Prepare: decide why a settlement is appropriate and what terms can be offered. Be clear: explain at the outset that the discussion is “without prejudice AND subject to section 111A of the Employment Rights Act 1996”. Understand limits: present the offer as an option, not a threat. Allow time: give the employee appropriate time and space to consider the approach and seek legal advice. Document carefully: keep records of what was discussed and provided. Benefits of protected conversations for both employers and employees Whilst not a universal solution to all issues, reaching a settlement can result in significant benefits for both parties. For an employer it will often result in a quicker resolution to the issue at hand at a proportionate cost. It can also avoid the need for both parties to conduct/endure protracted and often uncomfortable formal processes. The employee benefits from the certainty surrounding exit arrangements, potentially increased financial security and usually, agreed reference wording. Overall, protected conversations if used lawfully and sensitively, can be a valuable resolution tool with significant “on the ground” advantages to both employer and employee. To learn more about protected conversations (and settlements generally) please join us for our upcoming Webinar. How Morr & Co can help? If you have any questions or would like any further information on the content of this article, please do not hesitate to contact our Employment team on 0333 038 9100 or email info@morrlaw.com and a member of our expert team will get back to you. Disclaimer Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position. Authored by Francesca Wild Senior Associate Solicitor Message Elizabeth Maxwell Associate Solicitor Message Tags Insights On this page Related Stories Protected Conversations and Exits – Do’s, Don’ts and Maybes Constructive unfair dismissal: guide for employers Disciplinary proceedings – beware of the knee jerk reaction View more Contact our team to find out more GET IN TOUCH
