Protected conversations: What are they, when can you use them and crucially, when can’t you?

111A of the Employment

Since 29 July 2013, employers and employees have be able to engage in confidential, “off the record” discussions about terminating employment thanks to s. 111A Employment Rights Act 1996 (“ERA”).  This has become known as “protected conversations”. However, my experience is that very few employers – or employees – know exactly when these protected conversation can take place – and indeed in what situations they can’t.  

Without prejudice

Nearly everyone has heard of the common law principle of without prejudice.  This still exists and essentially prevents any discussions that are made in a genuine attempt to settle a dispute from being raised in front of a court or being used as evidence.

However, this principle has required updating as without prejudice rules state that a dispute must be on-going before the “without prejudice” rules kick in.  In employment law terms, there are many times when an employer may wish to raise the issue of parting ways with an employee before any dispute has actually arisen.  Indeed, case law tells us that even where an employee has raised a grievance, this is not necessarily enough to be considered as an on-going dispute. 

Protected conversations

s.111A ERA introduced a statutory form of the without prejudice rule but with one main difference; the parties did not need to be in a dispute for it to kick in.  There are however some restrictions on when s.111A can be used.

1. 111A protection can only be used:
2. In claims of “ordinary” unfair dismissal – this means that if the claim is one of automatic unfair dismissal (such as a dismissal related to whistleblowing), one of discrimination claims or a breach of contract claim, s.111A protection cannot be relied upon.
3. Where there is no improper behaviour – this can be for example threatening the employee to accept the terms offered (including pressuring them or not giving them sufficient time to consider), harassment, bullying or discrimination.

Ideal uses

Protected conversations are ideal when an employer may not be happy with an employee’s performance, but wants to give that employee the option of entering into a settlement agreement instead of going through a formal performance review. Indeed, any party can broach the subject of a settlement agreement and an employee may likewise wish to raise the option of a settlement agreement to end their employment.

For any further information or advice on protected conversations or terminating employment, please contact Ilinca Mardarescu.