What are protected conversations?
A protected conversation is a confidential discussion between an employer and an employee about the possibility of ending the employment relationship on agreed terms. Protected conversations are covered by Section 111A of the Employment Rights Act 1996, which means that – in most cases – the details of the discussion cannot be used as evidence in an ordinary unfair dismissal claim at an employment tribunal.
Protected conversations are typically used where there are ongoing performance issues, a breakdown in working relationships, or other workplace difficulties, and the employer wants to explore an agreed exit without having to follow a lengthy formal process.
It’s important to note that protection is not absolute. A conversation will not be “protected” if:
- There is evidence of improper behaviour, such as pressuring or threatening an employee into accepting terms.
- The claim relates to discrimination, whistleblowing, or breach of contract, where normal tribunal rules apply.
In practice, a protected conversation creates a space where both employer and employee can discuss options, often leading to a settlement agreement, in a way that encourages open, constructive dialogue.
When are protected conversations used?
Employers often use protected conversations in situations such as…
- Avoiding tribunal risk
- Where there is potential for a claim, and a swift, agreed resolution is in the best interests of the business.
- Underperformance or capability concerns
- Where formal performance management could take months and strain relationships further.
- Workplace conflict
- When relationships between colleagues or between an employee and management have broken down irreparably.
- Redundancy situations
- Offering an alternative to lengthy consultation processes, particularly for individual redundancies.
- Long-term sickness absence
- Where an employee is unable to return to work and both sides want to explore a dignified exit.
- Senior-level exits
- Where discretion and confidentiality are critical, and a mutually agreed departure is preferable to a public dispute.
A protected conversation mitigates specifically against the risk of a subsequent unfair dismissal claim when an employer wants to have a private discussion with an employee about leaving the company on mutually agreed terms, typically linked to a settlement agreement.
However, if there is an already existing dispute with an employee, a “without prejudice” conversation should be used instead, since it offers a much wider range of protection to the employer. Generally speaking, if legal proceedings have been threatened or brought in court or a tribunal there is likely to be a dispute.
Why do protected conversations matter to your business?
Protected conversations are a valuable tool for employers, offering a pragmatic way to manage challenging situations.
They matter to your business because they…
- Encourage early resolution
- Allowing sensitive issues to be addressed before they escalate into formal grievances or legal claims.
- Save time and cost
- Avoiding the disruption, resource drain, and expense of long disciplinary, performance management, or redundancy procedures.
- Reduce legal risk
- Discussions are generally inadmissible in unfair dismissal claims, giving you greater confidence when exploring settlement.
- Maintain confidentiality
- Allowing disputes or employment exits to be handled discreetly, protecting your reputation.
- Support dignity and fairness
- Giving employees the opportunity to exit on agreed terms, often with a financial package and agreed reference, rather than through a contested process.
- Protect organisational culture
- By resolving disputes constructively, you minimise damage to morale and maintain trust among the wider team.
When managed well, protected conversations give employers more flexibility in how they deal with difficult employment matters, but mishandling them can lead to grievances, mistrust, and costly legal challenges.
How can we can help you with protected conversations?
We provide end-to-end support to ensure your protected conversations are legally compliant, professional, and effective.
Our services include…
- Assessing suitability
- Advising whether a protected conversation is appropriate in your circumstances, or whether another route (such as formal performance or redundancy procedures) is safer.
- Planning the conversation
- Helping you prepare what to say, when to say it, and how to manage employee reactions. We provide scripts, key talking points, and coaching so managers feel confident.
- Drafting settlement offers
- Producing clear and compliant written offers, including suggested financial terms, confidentiality clauses, and reference wording.
- Managing the process
- Guiding you through each step, from the initial approach to the signing of a settlement agreement, ensuring deadlines and legal requirements are met.
- Training for managers
- Equipping leaders with the knowledge and skills to handle sensitive discussions appropriately and avoid “improper behaviour” that could undermine the protection.
- Dispute resolution support
- If an agreement is not reached, we advise on next steps to ensure you remain compliant and minimise risk.
Our aim is to give you the confidence to handle sensitive workplace situations professionally, while protecting your business and treating employees fairly.
Which other HR topics are related to protected conversations?
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