What a protected conversation is
Section 111A of the Employment Rights Act 1996 says that evidence of pre-termination negotiations is not admissible in an ordinary unfair dismissal claim. "Pre-termination negotiations" means any offer made or discussion held, before employment ends, with a view to it ending on agreed terms.
The rule lets an employer open a frank conversation about leaving, even where there is no existing dispute, without the conversation being used against it later. It protects you in the same way: what you say about being willing to leave cannot be quoted in an ordinary unfair dismissal case.
Where the protection stops
Section 111A does not apply to:
- discrimination, harassment or victimisation claims;
- automatically unfair dismissal, such as dismissal for whistleblowing, pregnancy, union membership or asserting a statutory right;
- breach of contract or wrongful dismissal claims;
- anything said or done that a tribunal considers improper.
So if you believe the real reason for the offer is your pregnancy or a complaint you made, the conversation may well be admissible in that claim.
What counts as improper behaviour
The Acas Code gives examples:
- harassment, bullying or intimidation, including offensive language or aggressive behaviour;
- physical assault or the threat of it;
- victimisation or discrimination;
- putting undue pressure on a party, such as not allowing a reasonable time to consider the offer, or saying before any disciplinary process has begun that the employee will be dismissed if the offer is rejected;
- an employee threatening to damage the employer's reputation unless the offer is improved, unless the threat is a protected whistleblowing disclosure.
Where there is improper behaviour, the tribunal decides how much of the conversation to admit.
How "without prejudice" differs
| Protected conversation | Without prejudice | |
|---|---|---|
| Source | Section 111A, Employment Rights Act 1996 | Common law |
| Needs an existing dispute? | No | Yes |
| Claims covered | Ordinary unfair dismissal only | Any claim |
| Lost by | Improper behaviour | Unambiguous impropriety, such as blackmail or perjury |
| Can be waived? | No | Yes, if both sides agree |
Employers often label a meeting as both. That is sensible, but the label does not decide the matter. A tribunal looks at whether the conditions for each rule were met.
If you are invited to one
- Listen and take notesYou do not need to argue your case or agree to anything.
- Ask what happens if you say noThe answer tells you your alternative: a redundancy process, a performance plan or nothing.
- Ask for the offer in writingAnd for the draft agreement.
- Ask how long you haveThe Acas minimum is 10 calendar days from the written terms.
- Do not resign or hand in your passYou remain employed and should carry on working unless told otherwise in writing.
- Write up the meeting the same dayWho was there, what was said and any deadline given.
Then read should I sign? and get advice.
Being sent home
Employers sometimes suggest you stay away while you consider the offer. Agree only if it is on full pay and confirmed in writing as not being a suspension or disciplinary step. Being locked out of systems before you have agreed anything can itself be evidence that the decision was already made.
Frequently asked questions
Can I be dismissed in a protected conversation?
No. It is a discussion about ending employment on agreed terms. If no agreement is reached, the employer must follow a fair process before any dismissal.
Do I have to attend?
You can decline, but it is usually worth hearing the offer. You do not have to respond on the spot.
Can I bring someone with me?
There is no legal right to be accompanied, but the Acas Code says it is good practice for employers to allow it. Ask.
Can I record the conversation?
Ask first. Covert recording can damage trust and may be a disciplinary matter, although tribunals sometimes admit such recordings.
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.