Protected conversation at work: what it means

What is a protected conversation?

A protected conversation is a pre-termination discussion about ending your employment, usually on settlement terms, that is protected under section 111A of the Employment Rights Act 1996. Either your employer or you can raise it, even where there is no existing dispute. Normally, it cannot be used as evidence in an ordinary unfair dismissal claim.

The rule was introduced in 2013 to give employers and employees a way to discuss an exit without that discussion automatically becoming evidence later. See the wording in section 111A of the Employment Rights Act 1996 and the practical guidance from ACAS on settlement agreements. In practice, a protected conversation is often the opening move that leads to a settlement agreement.

What does section 111A protect, and what does it not?

Section 111A only protects the conversation from being used as evidence in an ordinary unfair dismissal claim. It does not cover claims of automatic unfair dismissal, discrimination, whistleblowing detriment, or breach of contract. If your situation involves any of those, the conversation could still be referred to in those proceedings.

This is the limit people miss most often. If, for example, you believe the real reason for the conversation is your age, a disability, or something you raised as a whistleblower, the "protected" label does not necessarily stop that conversation being used in a discrimination or whistleblowing claim. It is worth getting advice early if you think another claim might be in play alongside a straightforward exit.

What is improper behaviour in a protected conversation?

Section 111A(4) strips away the protection where there has been "improper behaviour", so the conversation becomes admissible again. It includes things like undue pressure to accept an offer, threats to dismiss you if you refuse, or not giving you reasonable time to consider terms. ACAS suggests a minimum of 10 calendar days to think an offer over and take advice.

Other examples ACAS points to include harassment, victimisation, and any threat made if the true position is that the employer would not otherwise have grounds to dismiss you fairly. If you feel you were bounced into a decision, or given no real chance to take advice, that is worth flagging when you get your settlement agreement reviewed.

Protected conversation vs without prejudice

A without prejudice discussion needs an existing dispute between you and your employer, but once that condition is met it can cover a wide range of claims. A protected conversation does not need an existing dispute, but its protection is narrower, covering only ordinary unfair dismissal. Employers often rely on both grounds at once.

In practice, if there is already a live grievance, disciplinary process or dispute, your employer is likely to invoke without prejudice protection as well as section 111A, so that the conversation is shielded across a broader set of claims. Read our full comparison in the without prejudice guide.

My employer wants a protected conversation, what should I do?

Stay calm and listen to what is being proposed. An employer opening a protected conversation usually signals that a settlement agreement offer is coming. Do not sign or verbally agree to anything on the spot. Take independent legal advice before you respond, and ask for reasonable time, at least the 10 days ACAS recommends.

Ask for the offer in writing, note down what was said and by whom, and avoid reacting in the room. Once you have the terms in front of you, our guide on negotiating a settlement agreement covers how to push back on the figure and the terms before you sign.

Can my employer use a protected conversation during my grievance?

Yes, in principle. Section 111A does not require an existing dispute at all, so a live grievance does not stop your employer opening one. But if your grievance raises discrimination, whistleblowing, or something that could amount to an automatic unfair dismissal, section 111A does not protect the conversation from being used as evidence in those specific claims, so do not assume it is fully covered.

A grievance also counts as an existing dispute in its own right, which can bring without prejudice protection into play alongside section 111A for the ordinary unfair dismissal claim. See our without prejudice guide for how that works from the other side.

Protected conversation: frequently asked questions