Before the meeting
- Be clear on the reasonRedundancy, performance, conduct, relationship breakdown. You need a legitimate rationale you could explain to a tribunal.
- Check the risk profileHas the employee raised a grievance, announced a pregnancy, disclosed a health condition or made a protected disclosure? If so, section 111A may not protect the conversation.
- Know the fallbackDecide what process you will follow if the offer is refused, and be ready to start or continue it.
- Get authority for the figuresIncluding a ceiling for negotiation. See how much to offer.
- Prepare the documentsA short offer letter and the draft agreement, ready to send the same day.
- Write a scriptThree or four minutes long. Stick to it.
In the meeting
Hold it in private. Say at the start that you would like to have a conversation on a without prejudice basis and under section 111A of the Employment Rights Act 1996, and explain what that means: that it is off the record and cannot normally be referred to later.
Then cover five points.
- The concern or situation that has led to the meeting, in neutral terms.
- That there are two routes: the normal process, or an agreed exit.
- The outline of the offer.
- That it is voluntary, that they should take legal advice and that you will contribute to the cost.
- How long they have, and who to contact.
Do not ask for an answer in the room.
What not to say
- "If you don't accept, you will be dismissed." Before a process has started, this is the Acas Code's own example of undue pressure.
- "The decision has already been made."
- "This offer is only open until tomorrow."
- Anything critical of the employee's age, health, pregnancy, family commitments or complaints.
- Promises you cannot keep about references, bonuses or share awards.
It is legitimate to explain factually what the alternative process involves and that its outcome is not yet known.
After the meeting
- Send the offer letter and draft agreement, marked "without prejudice and subject to contract".
- State the deadline. Allow at least 10 calendar days from the written terms, and agree reasonable extensions.
- Confirm the contribution to legal fees.
- Keep a note of the meeting. Store it separately from the personnel file.
- Do not discuss the offer with colleagues.
Should the employee stay at work?
Do not suspend or remove system access as a matter of course. That signals a decided outcome. If it would help both sides, offer a short period of paid leave to consider the offer and confirm in writing that it is by agreement and not a disciplinary step.
Where the protection will not help you
Section 111A does not apply to claims of discrimination, automatically unfair dismissal including whistleblowing, or breach of contract. Without prejudice privilege covers those, but only where there is a genuine existing dispute that the conversation is trying to settle. If the employee has no idea there is a problem, there may be no dispute.
In those cases, assume the conversation could be read out in a tribunal and conduct it accordingly. Consider whether to begin the formal process first so that a dispute exists.
If talks fail
Return to the process. Managers who took part in the settlement discussion can continue to be involved, but the decision-maker in any later hearing must approach it with an open mind and decide on the evidence. Tribunals cannot hear about a properly conducted protected conversation in an ordinary unfair dismissal claim, but they can see whether the later process was genuine.
Frequently asked questions
Should the conversation be without prejudice or protected?
Label it as both. Then check which rule actually applies: without prejudice needs an existing dispute, and section 111A only covers ordinary unfair dismissal.
Who should hold the conversation?
Someone senior enough to make the offer, ideally with an HR colleague present to take a note. Avoid a manager who is the subject of the employee's complaint.
Do we have to let the employee bring a companion?
There is no statutory right, but the Acas Code says it is good practice to allow it.
What if the employee says no?
Thank them, confirm the offer is withdrawn or remains open until a set date, and continue with normal management or the formal process.
Sources
About this guide. This page is general information, not legal advice, and reflects the law and published government plans on the date shown above. Frederick George is a legal referral service, not a law firm. For advice on your own circumstances we will introduce you to an SRA-regulated solicitor.