Protected Conversation Advice: What Employees Need to Know

If your employer has invited you to a protected conversation, you may be wondering whether your job is at risk and what you should say. A protected conversation is often used to discuss a possible settlement agreement to end your employment on agreed terms. You do not have to agree to a proposal simply because you attend the meeting.

Before the meeting, you can ask what your employer wants to discuss and think about the questions you would like to raise. If they make an offer, ask for it in writing and take time to consider it before responding. This guide explains what a protected conversation means, what to expect at the meeting and what you can do if you are offered a settlement agreement.

What is a protected conversation?

A protected conversation is an ‘off-the-record’ discussion between you and your employer aimed at exploring the possibility of ending your employment through a settlement agreement. Under section 111A of the Employment Rights Act 1996, pre-termination settlement discussions generally cannot be used as evidence in an ordinary unfair dismissal claim. 

There are limits. Section 111A does not automatically protect discussions in other claims, such as discrimination or breach of contract. Where there has been improper behaviour, an employment tribunal may allow evidence of the discussions in an unfair dismissal claim to the extent it considers just. Improper behaviour may include bullying, discrimination or undue pressure to accept an offer. Read more about improper behaviour in a protected conversation.

Should you accept an invitation to a protected conversation?

You do not have to accept the invitation, but attending may help you understand what your employer is proposing. Before the meeting, you can ask what they want to discuss and prepare any questions you have. You may also ask whether you can bring a colleague or trade union representative; there is generally no automatic right to be accompanied at a protected conversation.

You do not have to accept an offer at the meeting. Listen to the proposal, ask for it in writing and take time to consider your options. You may decide to negotiate, decline the offer or seek advice before responding.

Is a protected conversation confidential?

The legal limits on using a protected conversation as evidence do not, by themselves, mean that everything said in the meeting must be kept secret. You may need to discuss an offer with a legal adviser or someone close to you. If your employer asks you to keep the discussion confidential, clarify what they mean and who you can speak to before agreeing to any restrictions.

What’s the purpose of a protected conversation?

It gives you and your employer an opportunity to explore whether your employment could end on agreed terms. Your employer may raise this because of a possible redundancy, concerns about performance or a breakdown in the working relationship. A proposal might include a financial payment, an agreed reference or other terms. You can hear what is proposed without committing yourself to it.

Before the law was changed in 2013, many employers hesitated to have frank discussions with employees due to the risk of legal repercussions. In some cases, these conversations backfired, leading to situations where employees felt compelled to resign and then pursued claims for constructive dismissal.

To address this, the government introduced the new law to provide legal protection for both parties. As former Prime Minister David Cameron explained in a 2011 speech, the goal was to allow “the boss and an employee [to] sit down together and have a frank conversation – at either’s request.” This policy became law in 2013, with the relevant provisions added to Section 111A of the Employment Rights Act 1996.

How is a protected conversation different from a without prejudice discussion?

Section 111A can protect settlement discussions even where there is no existing dispute, but only in ordinary unfair dismissal claims. The separate “without prejudice” rule generally requires an existing dispute and can apply to a wider range of claims. Depending on the circumstances, both rules may apply.

Read our guide to protected conversations and without prejudice discussions for a fuller comparison.

Can you initiate a protected conversation yourself?

Although employers often initiate these discussions, you can also ask your employer whether they would be willing to discuss ending your employment on agreed terms.

You may find information on how your employer handles protected conversations in your staff handbook. However, without formal guidance, you can simply send a polite email expressing your interest. Here’s an example of how you might phrase it:

Example email

Dear [name]

I would like to have a meeting about the possibility of bringing my employment to an end by way of a settlement agreement.

I understand that, under section 111A of the Employment Rights Act 1996, this meeting should be conducted by way of a protected conversation.

Please could you let me know a convenient time.

Regards

If your employer isn’t familiar with this type of meeting, you could refer them to the ACAS Code of Practice on Settlement Agreements, which outlines the process and legal framework.

The timing of your request can be crucial to achieving a favourable settlement. Consider your employer’s perspective—they may want to avoid the complexities of a formal disciplinary or redundancy procedure. By starting the discussions early, when tensions are lower and before any formal action is taken, your employer may be more willing to explore a settlement. This proactive approach can often lead to a smoother, more amicable resolution for both parties.

How can you make the most of a protected conversation?

Thorough preparation will minimise stress and help your confidence. Write down a list of questions that you want to ask, such as:

• Why are you proposing to end my employment?

• What payment are you offering, and how has it been calculated?

• Will I be required to work my notice period, or will it be paid in lieu?

• Will you provide me with a reference, and if so, what will it say?

• What happens if I don’t agree to the terms of the settlement agreement?

Remember, you are under no obligation to accept any offer of a settlement agreement. You may want to speak to a settlement agreement solicitor before deciding how to respond. Ask whether your employer will contribute to the cost of legal advice.

To clarify the terms being offered, ask your employer to provide the proposal in writing—either as a draft settlement agreement or in the form of an email or letter. This will allow you to review the details carefully and consult your legal adviser before making any decisions.

By asking the right questions and securing all the relevant information, you’ll be better equipped to evaluate whether the terms offered are in your best interest and whether there’s scope for negotiating a better deal on the settlement agreement.

Do you have the right to have a companion with you?

Legally, you do not have the right to be accompanied during a protected conversation. This differs from disciplinary or grievance hearings, where you can bring a colleague or representative.

However, many employers recognise that allowing an employee to bring a companion—such as a colleague or union representative—is good employment practice. Some companies even have policies specifically permitting this.

While you can’t insist on being accompanied, it’s worth asking your employer if they will allow it. A trusted companion can provide emotional support, help take notes, and ensure you fully understand the discussion. If your employer refuses, we recommend attending the meeting on your own, if you feel comfortable doing so, to ensure you don’t miss the opportunity to hear what they have to offer.

Can You Negotiate on a Settlement Agreement?

During a protected conversation, your employer will probably propose a settlement agreement to end your employment on agreed terms. While the initial offer might seem fixed, there is often room for negotiation, allowing you to secure better terms.

Check out our comprehensive guide to negotiating the best settlement agreement for valuable tips on getting the best possible deal.

While the financial settlement is usually the primary focus, don’t overlook other important aspects of the agreement that could benefit you in the long run. Consider negotiating for:

• A detailed reference: A positive, detailed reference can help secure future employment.
• Outplacement support: This could include professional assistance with job searches, CV writing, and interview preparation, giving you a head start in your next career move.
• Release from restrictive covenants: If your employment contract contains post-employment restrictions (e.g., non-compete clauses), negotiating a release from these can give you more freedom in your job search.

You can ensure the settlement agreement works in your best interests by addressing financial and non-financial terms.

What happens next?

Once a settlement agreement has been proposed, your employer should give you reasonable time to consider it. The ACAS Code of Practice recommends at least 10 calendar days to consider the proposed formal written terms and receive independent advice, unless both parties agree otherwise. If you need longer, ask for an extension.

For a settlement agreement to meet the legal requirements, you must receive advice from a relevant independent adviser about its effect on your ability to bring the claims covered by it. Check what contribution your employer has offered towards the cost of that advice.