Definition
A statutory provision under Section 111A of the Employment Rights Act 1996 that allows employers and employees to have confidential discussions about ending employment on agreed terms, without those discussions being admissible in an ordinary unfair dismissal claim.
UK Context
Section 111A of the Employment Rights Act 1996 was introduced in July 2013. ACAS provides a Code of Practice on Settlement Agreements that covers protected conversations. The protection does not apply to discrimination, whistleblowing, or automatically unfair dismissal claims. Improper behaviour by the employer removes the protection entirely.
Best Practices
- Seek legal advice before initiating a protected conversation, particularly where discrimination or whistleblowing risk exists
- Follow ACAS guidance: explain the purpose clearly, give at least 10 calendar days to consider, put the offer in writing
- Do not put pressure on the employee or behave improperly — this removes the statutory protection
- Keep a separate confidential record of the conversation that is not placed on the personnel file
Frequently Asked Questions
When should an employer use a protected conversation?
Protected conversations are most useful when there is no existing dispute but the employer wants to propose a mutually agreed exit — for example, during underperformance, role restructuring, or relationship breakdown. They allow the employer to make an offer without it being used as evidence of predetermination.
Does a protected conversation protect against discrimination claims?
No. Section 111A only protects against ordinary unfair dismissal claims. If the employee brings a claim for discrimination, whistleblowing, or any form of automatically unfair dismissal, the conversation can be disclosed to the tribunal in full.
Can an employee refuse to have a protected conversation?
Yes. An employee can decline to participate in a protected conversation, and no adverse inference can be drawn from their refusal. The employer cannot treat the refusal as misconduct or use it against the employee in any way.