Protected conversation: Stay in the driving seat

We often see clients coming to us with settlement agreements offered by their employers marked ‘protected under section 111A Employment Rights Act 1996.’  This is extremely common and simply means that the agreement has been offered following a ‘protected conversation.’ 

The term ‘protected’ means that the conversation and associated proposed terms cannot be disclosed in any future employment tribunal proceedings for unfair dismissal (they can still be referred to in relation to other types of claim e.g. discrimination).  It is therefore a tool to discuss a mutually agreed exit from employment which can then not be used against either party in the future if litigation arises. 

Employees often don’t realise that the use and proposal of a protected conversation is open to them as well.  It is not just a mechanism that can be implemented by the employer.  If you are not happy at work, then an option to bring your employment to a mutually acceptable conclusion is to propose a protected conversation. 

This can often be a relief for your employer and also allows you some control over the situation indicating to your employer that you are serious about your work-place concerns and leaving the business. 

We often advise that a protected conversation is arranged through HR who should have some understanding of the term and the remit under which it operates. 

A protected conversation differs from one held on a without prejudice basis because in order for a conversation or exchange to be without prejudice there needs to be an existing dispute between the parties (i.e. an unresolved grievance or employment tribunal proceedings). 

The protected conversation route can be a useful tool for an employee.  It precludes the need for a dispute to already have arisen but can allow for early resolution to be reached.  It is a method that can avoid the further deterioration of the working relationship and if a deal can be done, this prevents either party incurring the legal fees associated with litigation.

This blog was written by Elizabeth McGlone, Legal Director at didlaw.