A “protected conversation” (under section 111A of the Employment Rights Act 1996) is a way for your employer to have an “off the record” conversation with you to explore options for you to leave the business, even if there isn’t technically any dispute between you.
If a conversation is “protected” it cannot be referred to subsequently in an employment tribunal in ordinary unfair dismissal proceedings, unless it falls into certain specific exceptions.
The idea behind this concept, like the “without prejudice” rule, is to allow an employer to commence a frank and open discussion with an employee without the fear of having that conversation used against them later.
It allows the employer to explore if there is scope for the parties to part ways and terminate the employment relationship on agreed terms, rather than go through a protracted disciplinary, redundancy, performance management or grievance process.
It isn’t uncommon for an employer to open this type of discussion at the outset of a formal process to see if there is scope for a deal.
For example an employer might say to an employee that they have concerns with their performance, and could follow a performance management process, but before doing so would like to explore the possibility of an exit and offer a deal.
If the deal is rejected the employer would then revert to tackling the performance issues.
In some cases, for example where there are discrimination concerns or where there is a whistleblowing element to the case, it may be possible for an employee to use the employer’s protected conversation against them as the basis for a grievance or other complaint.
The best tactics will depend upon the facts, so you should take legal advice if possible if your employer suggests a “protected conversation”, so that you can take the best steps to protect your interests.
If you find that an employer springs a protected conversation upon you without warning, simply listen and take their suggestions away – you can then take advice on how best to proceed.
