Protected Conversations under section 111A of the Employment Rights Act

When an employment relationship isn’t working out, both employers and employees often want a clean, amicable way to part ways without resorting to lengthy, stressful disciplinary processes or risking a costly legal battle.

In UK employment law, there is a specific mechanism designed to allow exactly this kind of open, plain-speaking negotiation. Known as a protected conversation, this tool lets parties discuss a mutual exit strategy with a legal guarantee that the discussion remains entirely off the record.

What is a protected conversation?

In UK employment law, a protected conversation is a formal, confidential discussion between an employer and an employee about mutually terminating employment. Its main purpose is to allow both parties to openly negotiate a voluntary exit strategy, typically via a settlement agreement, without the fear that these discussions will later be used against them as evidence in an Employment Tribunal.

How does Section 111A work?

This legal mechanism is granted under Section 111A of the Employment Rights Act 1996. When an employer or employee initiates these discussions correctly, a legal shield of confidentiality is created.

Under normal circumstances, an employee cannot disclose the details, offers, or even the mere existence of these meetings in subsequent legal proceedings. This allows for plain speaking and pragmatic business decisions. However, this legal shield has very specific boundaries.

Protected conversation vs without prejudice: what is the difference?

While they seem similar on the surface, a protected conversation differs from negotiations held on a traditional ‘without prejudice’ basis in two major ways:

• No pre-existing dispute required: A protected conversation can be initiated even if there is no current formal dispute or fault on the part of the employee. However, you cannot initiate this process after a formal dismissal has already taken place.
• Implied confidentiality: The parties cannot simply agree between themselves to waive the statutory confidentiality given by Section 111A.

When is a protected conversation not protected?

The simple answer is that a protected conversation is not always protected. The legal shield of confidentiality can be lost in certain circumstances, allowing the conversation and any settlement offer to be relied on as evidence in an Employment Tribunal.

If this happens, the employer may be placed at a significant disadvantage in exit negotiations and any subsequent Employment Tribunal litigation.

There are four main situations where the confidentiality shield will fail:

1 – Claims outside of ‘ordinary’ unfair dismissal

The statutory protection only covers ordinary unfair dismissal claims—meaning cases involving employees with at least two years of continuous service dismissed under one of the five potentially fair reasons (conduct, capability, protected conversation redundancy, illegality, or some other substantial reason).

Section 111A of the Employment Rights Act does not protect employers against claims of ‘automatic unfair dismissal’ (listed under Sections 99B to 104F of the Act). The Employment Appeal Tribunal (EAT) confirmed this rule in Faithorn Farrell Timms LLP v Bailey [2016].

Warning for employers: If an employee alleges automatic unfair dismissal or discrimination, that allegation alone can pierce the veil of confidentiality. In Harrison v Aryma Ltd [2019], the EAT confirmed that a claim of discrimination or automatic unfair dismissal renders Section 111A unenforceable, whether the claim is ultimately proven or not. Employers must not rely blindly on this confidentiality.

2 – If there is evidence of ‘improper conduct’

The ACAS Code of Practice on Settlement Agreements states that improper conduct completely invalidates Section 111A protection. Paragraph 18 of the Code lists clear examples of improper conduct, including blackmail, unlawful discrimination, and physical threats. 

Ultimately, an Employment Tribunal decides what counts as improper conduct on a case-by-case basis.

3 – Giving insufficient time (the 10-day rule)

A common issue that arises from protected conversations (particularly given that they do not require any disputes between the parties, or fault on behalf of the employee) relates to a lack of reasonable time for consideration of the offer made under a protected conversation. 

Paragraph 12 of the Code encourages a period of at least 10 calendar days for an employee to consider and seek advice on the terms of any proposed offer made under a protected conversation. 

4 – The fallacy of ‘ancillary actions’

Another common mistake employers make is assuming that all actions surrounding a termination offer are automatically hidden by confidentiality. Any action taken by the employer that is ancillary (secondary) to the offer can potentially be used as evidence.

For example, if an employer makes an offer and then unilaterally sends the employee home and revokes their access to company IT systems, that action falls entirely outside the scope of Section 111A. The employee can use that lockout as direct evidence of a fundamental breach of contract in a constructive dismissal claim.

Examples of Tribunal decisions of improper conduct

To understand how fine the line is between aggressive negotiation and improper conduct, look at how the Employment Appeal Tribunal (EAT) has ruled on specific timelines and behaviours:

• A period of 7 days to consider an offer was not enough to amount to improper conduct in the case of Murray v Hudson Administration Services Ltd ET Case No.1806168/20, notwithstanding that the Claimant’s manager did not properly explain the extent and effect of the confidentiality of the protected conversation.
• In Gallagher v McKinnon’s Auto and Tyres Ltd [2024] EAT 174, the Employment Tribunal determined that Section 111A was not invalidated, despite;
• an ‘ambush’ meeting to a protected conversation 
• failure to allow an employee to be accompanied 
• 48 hours to consider the offer of settlement 
• ‘implying’ dismissal by stating that the Claimant’s role was redundant.
• This was subsequently approved by the Employment Appeal Tribunal. Though, worth noting that employees presented with ultimatums of “accept, or you will be dismissed” are always likely to pierce the veil of confidentiality – as was the case in Crespigny v Information Security Forum Ltd ET Case No.2300316/14: 
• The Employment Appeal Tribunal in the case of Mr L Tarbuc v Martello Piling Ltd: [2026] EAT 58 expressed doubt that a period of 5 days to consider an offer in the circumstances was enough, on its own, to invalidate Section 111A. The Appeal Tribunal ultimately granted an appeal on a procedural point, finding that the Employment Tribunal did not properly consider the full context of the Claimant’s complaints of improper conduct.

What happens after a protected conversation?

Once a protected conversation takes place, the process typically moves into one of two directions:

• The standard route (successful negotiation): In normal circumstances, the employee instructs a specialist employment solicitor. A period of negotiation follows where the specific terms, financial payouts, and references are agreed upon. The employee then leaves the company smoothly under a legally binding settlement agreement.
• The dispute route (litigation): If the employee has a strong underlying claim, or if the employer acts improperly during the meeting, the protected conversation can bring workplace tensions to a sudden head. This often triggers the employee to file a formal internal grievance or launch formal Employment Tribunal proceedings against the employer.

How we can help

Navigating mutual separations and Section 111A negotiations requires strict adherence to legal frameworks to avoid costly mistakes. Whether you are an employer looking to propose an exit package safely, or an employee who has been caught off guard by an unexpected meeting, early expert advice is vital.

Get in touch with our experienced employment law team today for a confidential consultation to discuss your situation. We will review the strength of your case, advise you on whether it is in your best interest to accept the offer, and help you determine if there is scope to negotiate a better package or grounds to robustly resist your employer’s actions in a tribunal.