What is a protected conversation?
A protected conversation is a discussion between an employer and employee about ending employment on agreed terms, usually leading to a settlement agreement, that cannot be used as evidence in an ordinary unfair dismissal claim under section 111A of the Employment Rights Act 1996. The protection is not absolute: it does not cover discrimination claims, automatically unfair dismissal, or conduct during the conversation that amounts to "improper behaviour", such as threats or harassment.
Why employers use one
Without this protection, raising the idea of ending someone's employment could itself be treated as evidence of a pre-existing decision to dismiss, and used against the employer later. Section 111A lets employers open that conversation, and make a settlement offer, without an ongoing dispute already existing between the parties (unlike the older "without prejudice" rule, which only protects conversations once a dispute has started). ACAS's guidance on settlement agreements covers how this usually plays out in practice.
In practice, a protected conversation is often the opening move that leads to a settlement agreement being offered. See our guide to without prejudice for how the two protections differ, and our guide to negotiating a settlement agreement for what to do once one has opened.
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