Protected conversations


In 2013, the law changed to introduce a new legal concept, often called a “protected conversation”. The new rules make it easier for employers to have conversations with employees about ending their employment without risking an unfair dismissal claim. There is a statutory Acas Code of Practice: Settlement Agreements under section 111A of the Employment Rights Act 1996.


The “protected conversation” regime applies only to ordinary (not automatic) unfair dismissals, and to no other kind of tribunal claim. For example, it has no relevance to claims for discrimination, or to dismissals that relate to trade union membership or activity. 



Under the new rules, found in section 111A of the Employment Rights Act 1996 (ERA 96), employees are not allowed to reveal any protected conversation in any standard unfair dismissal claim before the employment tribunal unless there has been “improper behaviour”. The same applies to protected conversations initiated by an employee with their employer, such as a confidential discussion initiated by someone on long-term sick leave about the possibility of departure on agreed terms. Not just the content of the conversation must be kept confidential, but also the very fact that the conversation took place, as well as any internal communications about it, for example emails passing between management and HR about settlement discussions (Faithorn Farrell Timms LLP v Bailey [2016] UKEAT/0025/16/RN).


The main difference between a “without prejudice” and a “protected” conversation is that a discussion can only be without prejudice if there is already a dispute between the parties at the time of the discussion. In other words, it is not possible to spring a without prejudice conversation on an employee without warning and still maintain its confidential status before the tribunal. This is not the case with a “protected conversation”.


In addition, unlike the protection given by the “without prejudice” rule, which the parties can waive, deliberately or accidentally, the parties cannot waive the statutory protection provided to “protected conversations”, for example by accidentally referring to the protected conversation in open correspondence (Faithorn Farrell Timms LLP v Bailey [2016] UKEAT/0025/16/RN). 



The obvious scope for abuse by employers of the “protected conversation” regime has led to a quite tightly drawn Acas Code of Practice which states, in particular, that: 



• employers must allow an employee reasonable time to consider any agreement reached following a protected conversation. At least 10 calendar days are recommended for considering any formal written agreement and taking independent advice; and



• it is good practice to have a face-to-face meeting at an agreed time and place to discuss the settlement terms, and to allow employees to be accompanied to the meeting by a trade union official, union rep or work colleague. Although not a legal requirement, this practice may “help to progress settlement discussions,” says Acas.

If asked to participate in one of these discussions, members should ask to be accompanied by their rep, and ask early on for a copy of any notes made during the meeting.

If an employee suspects they are being targeted for an automatically unfair or discriminatory reason, such as age, pregnancy or trade union-related activities, they should consider raising this early. The rules protecting a conversation from disclosure to the tribunal only apply to a straightforward unfair dismissal claim, not to an automatically unfair or discriminatory dismissal.