Protected conversations: what your employer can and cannot say

Your manager asks for a quiet word, says the conversation is "off the record", and suggests it might be better for everyone if you moved on. That is usually a protected conversation, and the protection is narrower than the phrase suggests.

What section 111A actually does

Section 111A of the Employment Rights Act allows an employer and an employee to discuss ending the employment on agreed terms, and keeps those discussions out of an ordinary unfair dismissal claim.

It was introduced to let employers open an exit conversation without that conversation itself becoming evidence of a predetermined dismissal. It applies even where there is no existing dispute, which is what makes it different from the without prejudice rule.

Where the protection stops

This is the part that is routinely misunderstood, usually by the person opening the conversation.

• It only covers ordinary unfair dismissal. It does not stop the conversation being used in a claim for discrimination, whistleblowing, breach of contract, automatically unfair dismissal, or a claim about your dismissal being for asserting a statutory right.
• It does not apply to improper behaviour. Where the employer behaves improperly, the tribunal can admit the conversation even in an unfair dismissal claim.
• It does not stop you taking advice. Nothing about "off the record" prevents you speaking to a solicitor, and you should.

What counts as improper behaviour

The ACAS Code on settlement agreements gives examples: all forms of harassment, bullying and intimidation, physical assault, victimisation, discrimination, and putting undue pressure on you.

Undue pressure includes not giving you reasonable time to consider a proposal, and telling you that if you do not accept you will be dismissed, before any procedure has taken place. ACAS suggests a minimum of ten calendar days to consider a written offer.

So the line looks like this. "We think the relationship has run its course and we would like to discuss terms" is a proper conversation. "Take this by Friday or we start a disciplinary and you leave with nothing" is the kind of thing that can lose the protection.

How to handle it in the room

You do not have to respond in the meeting, and you should not. The single most useful sentence is: "Thank you, I would like to consider it and take advice, please put the proposal in writing."

Then, afterwards, write your own note of what was said and when, while it is fresh. If the conversation later turns out to be admissible, your contemporaneous note is evidence. If your employer sends a written summary that does not match what you remember, correct it in writing at the time rather than months later.

Ask the practical questions in writing too: what is the offer, what happens to your notice and holiday, what reference will be given, and what the timescale is.

Reading what is really going on

An employer opening a protected conversation is usually telling you something useful, whether they mean to or not. Often it means they want you out but would rather not run a formal process, either because the evidence is thin, because a process would be slow, or because there is a risk they would prefer not to test.

That is why the reflex to accept quickly is usually the wrong one. Your position is often stronger at that moment than it will be after a formal process has been run against you.

It also means you should think about whether there is more in play than unfair dismissal. If the real reason relates to your age, disability, race, sex, pregnancy or a concern you raised, then section 111A does not protect the conversation at all, and the value of your claim is on a completely different footing.

Before you agree anything

Get the proposal in writing, take advice on what your claims are actually worth, and only then decide whether to negotiate or to let the employer take the formal route.

Any agreement that ends your employment and waives your claims must be either a settlement agreement, where the employer normally pays for your independent legal advice, or an ACAS COT3. There is no version of this where you sign away your rights on a handshake, so use the advice you are entitled to.