Protected conversations are used by employers who want to part ways with an employee without going through a formal process. Understanding the rules protects you from being pressured into an unfair settlement.
When Employers Use Protected Conversations
Common scenarios:
- Performance that is borderline but not clearly dismissible
- Restructuring where formal redundancy process would take too long
- Breakdown in relationship at senior level
- Long-term sickness where capability process would be difficult
What Protection Applies (and What Doesn’t)
| Claim type | Protected by s.111A? |
|---|---|
| Unfair dismissal | Yes |
| Constructive dismissal | Yes |
| Wrongful dismissal (breach of contract) | No |
| Discrimination (race, sex, disability, etc.) | No |
| Whistleblowing detriment/dismissal | No |
| Automatically unfair dismissal (pregnancy etc.) | No |
This is important: if you have a discrimination or whistleblowing claim, the conversation is not protected and can be used as evidence.
The ACAS Code of Practice
ACAS recommends employers:
- Give the employee advance notice of the meeting and its purpose
- Allow the employee to bring a companion (colleague or union rep)
- Give at least 10 calendar days to consider any written offer
- Not use undue pressure (threats, ultimatums)
Breach of these standards can mean the conversation loses its protection.
The Settlement Agreement
If you reach agreement, it must be formalised in a written settlement agreement. For the agreement to be legally binding:
- It must be in writing
- You must receive independent legal advice (the employer usually contributes to the cost)
- The adviser must be identified and sign the agreement
- Specific statutory rights must be identified as being waived
See our Settlement Agreement Guide UK for what to look for in a settlement agreement.
ACAS Code and Pre-Termination Negotiations
Protected conversations are governed by Section 111A of the Employment Rights Act 1996. The ACAS Code of Practice on settlement agreements (November 2013) provides guidance on how these conversations should be conducted:
ACAS recommends:
- The employee receives a reasonable time to consider the offer — at least 10 calendar days is the ACAS suggested minimum
- The employer provides the proposed settlement agreement before the meeting, not only during it
- The employee has the opportunity to be accompanied to the meeting
If an employer follows the ACAS Code poorly (e.g. puts unreasonable time pressure on the employee, makes threats, or behaves improperly), the “without prejudice” protection may be lost and the conversation can be used as evidence of constructive dismissal.
A settlement agreement obtained through an improperly conducted protected conversation can also be challenged — particularly where the employee did not have enough time or information to make a genuinely informed decision.