In the complex world of employment, situations can arise where an employer and employee consider parting ways. In my role as a settlement agreement solicitor I advise and represent employees in the resolution of claims and disputes with their employer. These discussions, particularly those aiming for an agreed departure, are often sensitive and can carry significant legal implications. This is where Section 111A of the Employment Rights Act 1996 (ERA 1996) becomes incredibly relevant, introducing the concept of a "protected conversation."

In my latest blog I dig into the details of Section 111A, exploring its limitations, and why it is crucial for both employees and employers.

What Exactly is a Section 111A "Protected Conversation"?

At its heart, a Section 111A protected conversation is a specific type of discussion between an employer and an employee about ending the employment relationship on mutually agreed terms. The defining characteristic is that, subject to certain conditions, these discussions cannot be used as evidence in an ordinary unfair dismissal claim before an Employment Tribunal.

Think of it as a "safe space" for dialogue. Before Section 111A was introduced in 2013, employers were often hesitant to initiate discussions about an employee's departure on agreed terms, fearing that any offer or proposed exit package could later be used against them in an unfair dismissal claim. This created a barrier to early resolution and often led to more formal, confrontational processes.

Section 111A was designed to overcome this. It allows employers to explore the possibility of ending employment, often through a Settlement Agreement, without the immediate risk that the very act of having the conversation, or the terms discussed, will automatically be held against them if the discussions fail and the employee subsequently brings an unfair dismissal claim.

The "Without Prejudice" Principle Applied

The concept behind Section 111A mirrors, to some extent, the common law "without prejudice" principle. That principle generally applies to genuine attempts to settle an existing dispute. Section 111A extends this idea to situations where no formal dispute has yet arisen, but where the employer wishes to propose a departure. It allows for a discussion about a "pre-termination settlement offer."

Key Conditions and Limitations

While offering significant protection, it's vital to understand that the "protected" status of these conversations isn't absolute:

Scope of Protection: Unfair Dismissal Only: The protection offered by Section 111A primarily applies to ordinary unfair dismissal claims. This is a critical limitation. If an employee brings claims related to discrimination (e.g., sex, race, disability), harassment, victimisation, automatic unfair dismissal (e.g., for whistleblowing, asserting a statutory right), or breach of contract, the content of a Section 111A conversation can potentially be used as evidence.
"Improper Behaviour": This is arguably the most significant limitation. The protection afforded by Section 111A is lost if there has been "improper behaviour" during the course of the protected conversation. While "improper behaviour" isn't exhaustively defined in the legislation, ACAS guidance suggests it includes things like:
- Any form of harassment, bullying, or intimidation.
- Discrimination or victimisation.
- Undue pressure (e.g., an employer setting an unreasonable timeframe for considering an offer, or threatening dismissal if the offer isn't accepted).
- Misrepresenting facts.

If improper behaviour occurs, the discussions cease to be protected, and an Employment Tribunal could consider them as evidence in any type of claim, including unfair dismissal.

Why is this Important for Employees?

For employees, understanding Section 111A means recognising that an employer's invitation to a "protected conversation" indicates they are considering or proposing an end to your employment. While the conversation itself is shielded for unfair dismissal purposes, it's a clear signal that your job might be at risk.

Crucially, even within a protected conversation, you are still protected by broader employment laws. If you feel you are being discriminated against, harassed, or unduly pressured during such a discussion, you should be aware that the protection of Section 111A may fall away, allowing you to rely on those discussions as evidence.

Conclusion

Section 111A aims to provide a framework for constructive discussions about ending employment by mutual agreement. It encourages open dialogue by offering a degree of protection to employers. However, both parties must proceed with caution. For employees, being invited to a Section 111A conversation means seeking independent legal advice is paramount.

As an experienced and qualified settlement agreement solicitor, I can help you understand your rights, assess the fairness of any proposed terms, and determine if any improper behaviour has occurred, ensuring you make informed decisions about your future. Get in touch today, call 0330 043 8845, email clive@solicitor.help, or request a call back.