Being invited to a protected conversation can feel daunting, particularly if it’s your first time. Whether your employer is proposing a settlement agreement or discussing potential termination, knowing your rights during a protected conversation is crucial. In this guide, we’ll explain what a protected conversation is, how it works, and how to use it to your advantage.
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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. The key benefit of a protected conversation is that, as long as it’s conducted properly, anything said during this meeting can’t be used as evidence in an unfair dismissal claim. This means that both you and your employer can speak openly without worrying that those words will later be used in court.
However, there are some important exceptions to this rule. If the conversation involves improper behaviour, it loses its protected status. Improper behaviour can take many forms, including:
- Harassment, bullying, or intimidation
- Discrimination based on characteristics such as age, sex, race, disability, sexual orientation, religion or belief, gender reassignment, pregnancy and maternity, or marital/civil partnership status
- Unfair pressure, like threatening dismissal if a settlement offer is not accepted
It’s also crucial to note that the protections offered by a protected conversation apply only to unfair dismissal claims. If your situation involves other legal claims, such as discrimination or breach of contract, the content of the conversation may still be admissible in those cases.
Is a protected conversation confidential?
While the details of a protected conversation generally cannot be used as evidence in an unfair dismissal claim, this doesn’t automatically make the conversation confidential in every respect. The level of confidentiality often depends on an agreement between you and your employer.
For instance, you might need the flexibility to discuss the conversation with a trusted family member or legal adviser to make an informed decision. Similarly, your employer may wish to consult with senior management or an HR consultant. To avoid misunderstandings, it’s important to clarify and agree on who can be involved in these discussions from both sides.
What’s the purpose of a protected conversation?
The purpose of a protected conversation is to allow an employer and employee to discuss sensitive employment matters openly, without the fear that these discussions will lead to legal proceedings. It provides both parties with a safe space to explore mutually beneficial solutions, such as a settlement agreement, without the risk of their words being used against them later.
An employer may want to propose a termination of employment on mutually agreed terms. There may be several reasons for this, but it’s often because of issues such as:
- concerns about poor performance
- changes within the organisation
- redundancy
- clash of personalities
Rather than going through lengthy formal procedures, such as disciplinary action or a redundancy procedure, protected conversations offer a smoother and more amicable route to negotiate an exit, often involving a financial settlement.
Before protected conversations were introduced 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 concept of protected conversations 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.
What is Section 111A of the Employment Rights Act 1996?
If your employer has invited you to a protected conversation, they may have referred to Section 111A of the Employment Rights Act 1996. This legal provision states that evidence of pre-termination negotiations—such as offers or discussions about ending your employment through a settlement agreement—cannot be used in an unfair dismissal claim. Essentially, it allows both you and your employer to negotiate openly and confidently without the risk that these conversations will later be presented in an employment tribunal.
Should you agree to a protected conversation?
If your employer invites you to a protected conversation, it’s important to know that you’re under no obligation to agree to it. However, it can often be in your best interests to attend. A protected conversation provides a chance to understand what your employer is offering—whether it’s a financial settlement or an alternative exit arrangement—without any immediate commitment on your part.
By participating, you get the opportunity to explore potential benefits, such as a more favourable severance package, continued benefits, or even support in finding new employment. Additionally, the conversation is off the record, which means that, under normal circumstances, nothing discussed can be used against you in an unfair dismissal claim. This allows you to engage in open dialogue without fear of legal consequences.
It’s also worth remembering that attending the conversation doesn’t mean you must accept the terms proposed. You are free to reject the offer, negotiate for better terms, or seek further advice. It can be wise to consult with a solicitor before making any decisions to ensure your rights are protected, and you fully understand the implications of any settlement.
Can you initiate a protected conversation yourself?
While a protected conversation is typically initiated by the employer, as an employee, you also have the right to request one—provided its purpose is to discuss a settlement agreement. If you feel that ending your employment on mutually agreeable terms is the best course of action, you can approach your employer to see if they’re open to having this type of discussion.
You may find information on how your employer handles protected conversations in your staff handbook. However, if there’s no 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 protected conversations, 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 initiating a protected conversation 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 and more amicable resolution for both parties.
How can you make the most of a protected conversation?
Thorough preparation before the protected conversation will minimise stress and help your confidence. Write down a list of questions that you want to ask, such as:
- Why is my employment being proposed for termination?
- How much money are they offering you, and how has the settlement offer 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 settlement agreement. In fact, the law requires that you seek independent legal advice before signing one, ensuring you fully understand the implications. Your employer typically covers this cost of legal advice on the settlement agreement, so make sure you ask about this.
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 with 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 at the protected conversation?
Legally, you do not have the right to be accompanied during a protected conversation. Unlike disciplinary or grievance hearings, where you can bring a colleague or representative, protected conversations have the same entitlement.
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 for protected conversations.
While you can’t insist on being accompanied, it’s certainly worth asking your employer if they will allow it. Having 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 likely propose a settlement agreement to formally 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.
For valuable tips on how to get the best possible deal, be sure to check out our comprehensive guide on negotiating the best settlement agreement.
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.
By addressing both the financial and non-financial terms, you can ensure the settlement agreement works in your best interests.
What happens next?
Once a settlement agreement has been proposed, your employer should give you a reasonable amount of time to consider it. While ACAS recommends a period of ten days, it’s not uncommon for employers to offer less time in practice. Be sure to check the deadline and confirm if an extension is possible if you feel you need more time.
To ensure the settlement agreement is legally binding, you must seek independent legal advice. Without this, the agreement cannot be enforced. Your employer will typically cover the cost of getting legal advice on your settlement agreement.
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Andrew Crisp is the Principal Solicitor at Mason Bullock Solicitors, where he specialises in employment law and dispute resolution. With over two decades of legal experience, Andrew has built a reputation for his expertise in advising employees on settlement agreements and helping clients navigate complex litigation processes, including the removal of County Court Judgments (CCJs).