Protected conversations: What employers need to know

What is a protected conversation under section 111A?

Section 111A of the Employment Rights Act 1996 allows employers and employees to have confidential “pre-termination negotiations”, commonly known as “protected conversations”. They are designed to enable the parties to explore agreed exit terms without those discussions being used as evidence in an ordinary unfair dismissal claim. Unlike the common law “without prejudice” rule, section 111A does not require a pre-existing dispute. However, the protection is limited and should not be treated as a blanket shield for every claim or every aspect of the discussions.

What does the Tarbuc v Martello Piling Ltd ruling mean for employers?

The decision of the Employment Appeal Tribunal (“EAT”) in Tarbuc v Martello Piling Ltd provides important clarification on two areas that employers should understand before starting a protected conversation: the scope of section 111A protection, and how “improper behaviour” is assessed.

Which employment claims are covered by protected conversations?

The EAT confirmed that section 111A protection applies only in relation to claims of ordinary unfair dismissal. It does not prevent evidence of protected conversations from being admitted in other types of claim, including discrimination, unlawful deductions from wages, whistleblowing or automatically unfair dismissal.

In Tarbuc, the employer had sought a blanket exclusion of all evidence relating to the protected conversation across every claim. The EAT held that this was an error of law. Where an employee brings multiple claims, the tribunal must treat evidence covered by section 111A as inadmissible in respect of the ordinary unfair dismissal claim, but admissible for the other claims brought in the same proceedings. This means a conversation may be protected for one purpose, but still admissible for another.

What counts as improper behaviour during a protected conversation?

Section 111A(4) provides that if anything said or done during a protected conversation was, in the tribunal’s opinion, improper, or was connected with improper behaviour, the protection applies only to the extent the tribunal considers just. The Acas Code of Practice on Settlement Agreements (“Code”) gives examples of improper behaviour, including harassment, bullying and intimidation, physical assault, discrimination, and putting undue pressure on a party.

The EAT emphasised that improper behaviour must be assessed holistically, considering the cumulative effect of all relevant circumstances and not just the content of the conversation itself. In Tarbuc, the fact that the employee had been called into the meeting unexpectedly, with no prior notice and no opportunity to bring a companion, was relevant to whether there had been improper behaviour. This does not mean that an unannounced meeting will automatically be improper, but it does increase the risk. Although there is no statutory right to be accompanied at a protected conversation, the Code recommends allowing a companion as good practice.

How should employers prepare for a protected conversation?

Before starting a protected conversation, employers should plan the discussion carefully. This means identifying the business reason for the proposal, preparing a short script, and ensuring that any written offer makes clear that the employee is being given time to consider the terms and take independent legal advice. The Code recommends that, as a general rule, employees should be given a minimum of 10 calendar days to consider a proposed settlement agreement, unless the parties agree otherwise.

What should employers avoid during protected conversations?

Employers should avoid presenting the proposal as a fait accompli. Do not say that dismissal is inevitable if the offer is rejected, and do not link rejection of the offer to disciplinary, capability or performance action unless a separate fair process is genuinely being followed. A refusal to accept a settlement offer should not, of itself, lead to adverse consequences.

The EAT’s decision is a reminder that protected conversations need to be handled fairly and properly documented. Employers should explain the commercial or operational reason for the proposal in measured terms and avoid threats or undue pressure. Bear in mind that any notes may be disclosed if a claim falls outside section 111A, so keep them factual and professional.

Key considerations for employers before starting a protected conversation

Check at the outset whether there are any issues that may fall outside section 111A, such as discrimination, whistleblowing, automatically unfair dismissal, unlawful deductions from wages or other statutory complaints. If those risks are present, a protected conversation may still be useful, but it should be approached with greater care, and advice should be taken before the discussion takes place.

Our Employment team can help you understand the risks and handle protected conversations with confidence. You can get in touch by emailing employmentenquiry@lawblacks.com or visit our Employment page for more of our services, here.