Protected Conversation Solicitors

Our employment law team have considerable experience in advising employees on all aspects of protected conversations and negotiating settlements.

IBB Law’s employment law team can provide clear, practical guidance on protected conversations and negotiating settlements. Our team includes some of the region’s top ranked employment lawyers with decades of experience representing employees of all levels.

For advice on protected conversations, please contact our experienced employment solicitors today on 03456 381381 at our local offices in Beaconsfield, Reading and Uxbridge, or you can email your details to employmentlaw4 you@ibblaw.co.uk.

What is a protected conversation?

Your employer can have a confidential conversation with you regarding the termination of your employment on agreed terms in the knowledge that such a conversation is in certain circumstances “protected”.

Any offer your employer makes to you relating to the termination of your employment will normally be recorded in what is called a settlement agreement.  The pre-termination negotiations and terms of settlement are protected in so far as they cannot be used by you in any subsequent employment tribunal claim for unfair dismissal, under sections 111A of the Employment Rights Act 1996 (ERA).

Protected conversations can be started by either your employer or you.  However, neither you nor your employer has to participate in such a conversation.

Under section 111A of the ERA, such pre-termination negotiations can be treated as confidential even where there is no current employment dispute or where you or your employer is unaware that there is an employment problem. However, there are some exceptions to the application of section 111A, which are:

However, there are some exceptions to the application of section 111A, which are:

• claims that relate to an automatic unfair reason for dismissal, such as, whistleblowing, union membership or asserting a statutory right
• claims made on grounds other than unfair dismissal, such as claims of discrimination, harassment, victimisation or other behaviour prohibited by the Equality Act 2010
• claims relating to breach of contract or wrongful dismissal.

The provisions of section 111A are, additionally, subject to there being no improper behaviour. Where there is improper behaviour, anything said or done in pre-termination negotiations will only be inadmissible as evidence in claims to an employment tribunal to the extent that the tribunal considers it just. In some circumstances, for instance where unlawful discrimination occurs during a settlement discussion, this may itself form the basis of a claim to an employment tribunal.

What is Improper behaviour?

What amounts to improper behaviour is ultimately for an employment tribunal to decide on the facts and circumstances of each case. Improper behaviour will, however, include (but not be limited to) behaviour that would be regarded as ‘unambiguous impropriety’ under the ‘without prejudice’ rule.

Examples of improper behaviour are (but not be limited to):

• all forms of harassment, bullying and intimidation, including through the use of offensive words or aggressive behaviour
• physical assault or the threat of physical assault and other criminal behaviour;
• all forms of victimisation
• discrimination because of age, sex, race, disability, sexual orientation, religion or belief, transgender, pregnancy and maternity and marriage or civil partnership
• putting undue pressure on a party (e.g. your employer saying before any form of disciplinary process has begun that if a settlement proposal is rejected you will be dismissed).

In situations where there is no existing dispute between the parties, the ‘without prejudice’ rule cannot apply but section 111A can apply. In these circumstances the offer of, and discussions about, a settlement agreement will not be admissible in a tribunal (in an unfair dismissal case) so long as there has been no improper behaviour. Where an employment tribunal finds that there has been improper behaviour, any offer of a settlement agreement, or discussions relating to it, will only be inadmissible if, and in so far as, the employment tribunal considers it just.

Where there is an existing dispute between the parties, offers of a settlement agreement, and discussions about such an agreement, may be covered by both the ‘without prejudice’ rule and section 111A. The ‘without prejudice’ principle will apply unless there has been some ‘unambiguous impropriety’.

In court or tribunal proceedings other than unfair dismissal claims, such as discrimination claims, section 111A does not apply. In these cases, the ‘without prejudice’ principle can apply where there is an existing dispute at the time of the settlement offer and discussions, meaning that these will not be admissible in evidence unless there has been some ‘unambiguous impropriety’.

What is a settlement agreement?

Settlement agreements normally involve your employer agreeing to make a one-off payment to you in exchange for your agreement not to pursue an employment claim and are a way of avoiding the stress, uncertainty and cost of pursuing a claim.

Your employer may pre-emptively offer a settlement agreement when dismissing possibly because they have not or do not want to follow the proper procedure. You must take independent legal advice before signing a settlement agreement for the agreement to be legally binding.

You should be given a reasonable amount of time to consider the proposed settlement agreement. What amounts to a reasonable amount of time will depend on the circumstances of the case. As a rule, a minimum period of 10 calendar days should be allowed to consider the proposed formal written terms of a settlement agreement and to receive independent advice, unless you and your employer agree otherwise.

If you sign a valid settlement agreement, you will be unable to bring an employment tribunal claim about any type of claim which is listed in the agreement. Where a settlement agreement is not agreed, you may bring a subsequent claim to an employment tribunal unless the claim relates to an allegation of unfair dismissal the confidentiality provisions of section 111A of the ERA will apply.

Where there has been some improper behaviour for these purposes this does not mean that an employer will necessarily lose any subsequent unfair dismissal claim that is brought to an employment tribunal.

Please see our page on settlement agreements.

What if a settlement agreement cannot be agreed?

You do not have to agree the terms of a settlement agreement.

If you reject a settlement agreement you may still wish to resolve the dispute or problem that led to the offer being made and some other form of resolution could be sought. Depending on the nature of the dispute or problem, resolution could be through a grievance process or using Acas early conciliation, whichever is appropriate.

Please see our page Acas early conciliation.

Contact our specialist protected conversation solicitors today

IBB Law’s employment law specialists represent individuals at all levels no matter the size or sector of the company. If you have had a protected conversation, we can offer fast, reliable guidance on what to do next.

Contact our specialist employment law solicitors today on 03456 381381 or email your details to employmentlaw4you@ibblaw.co.uk.

The material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.