Protected Conversations at Work – a Client’s Guide

Protected conversations at work are confidential discussions between an employee and their employer where certain statements made during the conversation are legally protected from being used in future employment tribunal claims. These conversations are intended to allow employers and employees to discuss sensitive matters such as potential termination of the employment contract or settlement agreements without the fear that what is said will be used as evidence in a subsequent employment tribunal claim if a dispute arises later. 

Protected conversations at work are governed by the Employment Rights Act 1996 and are often associated with discussions around exit packages or settling grievances. The core purpose is to enable open and honest dialogue about the employment relationship, without the risk of what is discussed later being used against either party in court. The outcome of a protect conversation may be the offer of a financial settlement for the employee and this is often achieved using a “settlement agreement”.

Importantly, the conversation is only considered “protected” if it meets specific legal criteria. If the employer fails to follow these guidelines, or if the conversation crosses certain boundaries, the protection can be lost. Therefore, both the employee and employer must be careful when engaging in a protected conversation.

For employees who are invited to a protected conversations at work, the key is knowing the framework under which the conversation is being held. A protected conversation must be initiated in a way that is clear and specific. Your employer should inform you in advance that the discussion is to be “protected” under the legislation, usually in writing or as part of an introductory statement. You may be supplied with correspondence which refers to s111A of the Employment Rights Act which is the legislation dealing with this type of protected conversation.

A protected conversation could take place in a range of situations, such as:

For the conversation to be legally protected, it must remain informal and exploratory. It is a chance to have candid discussions without the conversation later being used to challenge the terms of any future claims, such as unfair dismissal.

Your employer may allow you to be accompanied by a colleague or union representative during the conversation. It is unlikely that you would be allowed to bring a third party (such as a solicitor) to the meeting. 

During protected conversations at work, your employer should conduct themselves professionally, ensuring the atmosphere is respectful and transparent. They should be clear from the outset that the conversation is a protected one, so you know that anything said will not be used against you in the future. 

Employers are also expected to behave in a way that is not intimidating or coercive. They should give you time to consider what is being discussed and avoid putting undue pressure on you to make decisions on the spot. 

A key part of the employer’s role is to act in good faith and provide you with enough information to make an informed decision. For example, if they are offering you a settlement agreement, they should clearly explain the terms, including what compensation you might receive and the implications of accepting or rejecting the offer.

It is important that the conversation remains voluntary; your employer should not create an atmosphere where it feels like you have no choice but to engage in the discussion.

While a protected conversation allows for open discussion, there are still some strict limitations on what can be said and how the conversation is conducted.

1. Threaten or Coerce: Employers cannot use the protected conversation as a means of pressuring you to accept a settlement or resign from your job. The conversation must not be used to intimidate or threaten dismissal or any other form of disadvantage. For instance, saying something like “If you don’t agree to this settlement, we will fire you” would not be permitted.

2. Raise Previous Grievances or Disputes: If there is an ongoing or past dispute between you and your employer, they cannot use the protected conversation as a way to reopen that issue unless you both agree. 

3. Use the Conversation Against You Later: If the conversation is genuinely protected, the employer cannot use statements made during the discussion as evidence if you later make a claim, such as for unfair dismissal. However, it’s worth noting that if the conversation involves any discrimination or other unlawful behavior, those claims are not protected by the legislation and may still be raised in court.

4. Use the conversation to discriminate against you: The employer cannot ignore your rights during the conversation, if your employer acts in a way which is discriminatory you may still be able to bring a discrimination claim to the Employment Tribunal based upon your employer’s conduct. If you have been selected for the conversation due to your gender, race, disability, age, sexuality or religion the conversation will not be protected.

Yes, an employee can request a protected conversation if they wish to explore options for ending their employment or discussing other issues in a confidential setting. However, it is important to note that the employer is not required to agree to this request. 

I would usually advise employees to raise any concerns with their employer via a grievance initially, this increases the chances that the employer may offer a settlement prior to any protected conversation. If an employee feels that their relationship with their employer has deteriorated, or if they are considering resignation or a potential claim, they may wish to initiate a protected conversation. This can provide a safe space to discuss concerns such as:

• The possibility of voluntary redundancy.
• The option to leave the job on mutually agreeable terms.
• The potential for a settlement agreement if things are heading toward dismissal.

If you ask for a protected conversation, your employer is under no obligation to comply, but it can open up avenues for resolution without the need for lengthy formal procedures. You may need to present the request professionally, outlining your reasons and how you believe it could benefit both parties.

If your employer invites you to take part in a protected conversation, I usually advise employees to attend because I think that it is better to know what your employer has in mind. If you do attend there are several things you should do to ensure that your rights are respected and that you make an informed decision.

1. Understand the Purpose: Make sure you understand why your employer is initiating the conversation and whether it is truly protected. They should inform you that the conversation is protected at the outset. If they don’t, ask for clarification.

2. Prepare: Take the time to prepare for the discussion. This might include reviewing your contract, gathering any relevant documentation (such as performance reviews), and considering your options, especially if the conversation relates to the possibility of termination or a settlement.

3. Seek Advice: Before going into the conversation, consider speaking with a solicitor or employment adviser. They can provide guidance on your rights and whether a settlement agreement or any offer being discussed is fair and reasonable.

4. Take Someone With You: You have the right to be accompanied by a colleague or union representative to the conversation. Their presence can help you understand the implications of what’s being discussed and provide emotional support.

5. Stay Calm and Professional: During the conversation, keep your responses respectful and professional. The idea is to explore options, not to get into a heated debate. If you’re unsure about any aspect of the conversation, ask for time to think or seek clarification.

6. Take Your Time: You are not obligated to make an immediate decision during the protected conversation. If an offer is made, ask for time to consider it. Do not feel pressured into accepting terms you’re not comfortable with.

7. Consider Your Options: After the conversation, take time to reflect on what was discussed. If a settlement or other resolution was offered, weigh the pros and cons before deciding to accept or reject it. If you are unsure, seek professional advice before making any decisions.

By understanding the process and your rights, you can ensure that a protected conversation is a useful tool for managing your employment situation, offering you the opportunity to resolve issues with your employer amicably and in confidence.

I usually recommend employees to attend a without prejudice meeting but not to accept any proposals without taking time to think first and obtain good legal advice. If you do attend, make sure you understand what your employer is proposing if you do not accept their offer and make sure that you take good notes of what has been said.

If you have been asked to take part in a protected conversation, or if you have any questions do not hesitate to contact us for advice and assistance using our free online enquiry form

• Guide to Unfair Dismissal claims
• Guide to Settlement Agreements