This article applies to England, Wales and Scotland.
In brief: A protected conversation is a discussion where your employer proposes ending your employment on agreed terms, and anything said cannot normally be used as evidence in an unfair dismissal claim. It's governed by section 111A of the Employment Rights Act 1996. The protection only applies to ordinary unfair dismissal and does not cover discrimination, whistleblowing, or situations where your employer behaves improperly.
Last updated: March 2026
By Yerty | This guide was created using analysis of tribunal cases and official ACAS/Gov.uk guidance.
If your employer has asked you into a meeting and told you the conversation is "protected" or "off the record", that can feel unsettling. It often comes out of nowhere, and you may not have been told in advance what the meeting was really about. You're not alone in finding this confusing.
This guide explains what a protected conversation is, what your employer can and can't do during one, and what rights you keep regardless.
Important: This guide provides information about UK employment law. Yerty is not a law firm and does not provide legal advice. Every situation is different. If your employer has initiated a protected conversation, consider speaking to a solicitor for advice specific to your circumstances.
What is a protected conversation?
A protected conversation (formally called a "pre-termination negotiation") is a discussion between you and your employer about ending your employment on agreed terms. It was introduced by section 111A of the Employment Rights Act 1996, which came into force in July 2013.
The key feature: what is said during a protected conversation cannot normally be used as evidence if you later bring an ordinary unfair dismissal claim at an employment tribunal.
In practice, this means your employer can sit you down, suggest you leave, and offer you a financial package, and if you refuse and are later dismissed, you generally cannot tell a tribunal about that conversation. The idea behind it is to allow both sides to have a frank discussion about parting ways without fear that the conversation itself will be held against either party.
How is it different from "without prejudice"?
You may have heard the term "without prejudice" used in a similar context. The two concepts overlap but are legally distinct.
| Protected conversation (s.111A) | Without prejudice | |
|---|---|---|
| Legal basis | Statute (Employment Rights Act 1996) | Common law principle |
| Requires an existing dispute? | No | Yes |
| What claims does it cover? | Ordinary unfair dismissal only | All claims |
| Can it be waived? | No, it's fixed by statute | Yes, by agreement |
| What removes the protection? | Improper behaviour | Unambiguous impropriety |
The practical difference matters. Your employer can initiate a protected conversation even when there is no existing dispute between you. They don't need to wait until you've raised a grievance or been put on a performance plan. With "without prejudice", there has to be a genuine dispute already in existence for the protection to apply.
However, "without prejudice" covers all types of claim, including discrimination and whistleblowing. Protected conversations only shield your employer in ordinary unfair dismissal proceedings. Both rules can apply to the same conversation at the same time.
When the protection does NOT apply
This is the part that matters most if you're an employee. Section 111A has significant exceptions, and understanding them gives you more control over the situation.
Discrimination claims. If you bring a claim for discrimination, harassment, or victimisation under the Equality Act 2010, the protection does not apply. Your employer cannot use a "protected conversation" to shield discussions that relate to your race, sex, disability, age, religion, sexual orientation, gender reassignment, marriage or pregnancy.
Whistleblowing. If you are dismissed or suffer a detriment for making a protected disclosure (whistleblowing), the protection under s.111A does not apply. You can use what was said in the protected conversation as evidence in your whistleblowing claim.
Automatic unfair dismissal. The protection only covers ordinary unfair dismissal. If you're dismissed for an automatically unfair reason (such as asserting a statutory right, trade union activity, or health and safety concerns), the conversation is not protected.
Improper behaviour. Even in ordinary unfair dismissal claims, the protection falls away if your employer behaves improperly during the conversation. The ACAS Code of Practice on Settlement Agreements gives examples of what counts as improper behaviour:
- Harassment, bullying, or intimidation
- Physical assault or the threat of it
- Putting undue pressure on you, for example by not giving you reasonable time to consider an offer
- Telling you that you will definitely be dismissed if you don't accept
- Discrimination of any kind
A recent Employment Appeal Tribunal case (Gallagher v McKinnon's Auto and Tyres, 2024) confirmed that the bar for "improper behaviour" is higher than simply acting unfairly. The employer in that case used a return-to-work meeting to introduce a settlement discussion without warning, gave only 48 hours to respond, and told the employee his role was being taken over. The EAT found this was not improper conduct, though it acknowledged the approach was not ideal.
What actually happens in a protected conversation
In most cases, a protected conversation follows a similar pattern.
Your employer invites you to a meeting. This might be described as a "catch-up", a "return to work" discussion, or simply a private meeting with HR. Once you're in the room, your employer tells you the conversation is protected under section 111A and proposes that you leave on agreed terms, usually with a financial payment recorded in a settlement agreement.
You don't have to agree to anything in the meeting. You don't have to respond immediately. The ACAS Code of Practice recommends that employers give you at least 10 calendar days to consider an initial offer before sending a full written settlement agreement.
If you accept in principle, negotiations continue and the terms are eventually recorded in a settlement agreement. You would need to receive independent legal advice before signing, which your employer normally pays for.
If you decline, your employer may proceed with whatever formal process they were considering (redundancy, performance management, disciplinary), or they may simply continue the employment relationship.
What to do if your employer initiates one
You don't need to panic, and you don't need to agree to anything on the spot.
You can ask questions. You're entitled to ask why the conversation is happening, what the proposed terms are, and what the alternative is if you don't agree. Your employer should answer these honestly.
You can take time. Don't let your employer pressure you into a quick decision. The ACAS Code recommends that employees be given reasonable time to consider, and a minimum of 10 calendar days is good practice for the initial proposal.
You can take notes. There's nothing preventing you from writing down what was said. While the content may be inadmissible in an ordinary unfair dismissal claim, it could be relevant to discrimination or whistleblowing claims where the protection does not apply.
You can bring a companion. You can ask whether you can bring a colleague or trade union representative to the meeting. Your employer is not legally required to allow this for a protected conversation (unlike a disciplinary or grievance hearing), but many will agree.
You can seek advice. Contact a solicitor, your trade union, or a free advice service before responding. If the conversation leads to a settlement agreement, you will need independent legal advice anyway, and your employer will typically contribute to the cost.
You can say no. Declining a settlement offer is not grounds for dismissal. If your employer dismisses you for refusing to accept a deal, that could itself be unfair.
Common misconceptions
"If it's protected, I can't talk about it at all." The protection prevents the conversation from being used as evidence in an ordinary unfair dismissal claim at tribunal. It doesn't prevent you from telling your solicitor, your trade union, your partner, or anyone else. Confidentiality clauses may apply separately if you eventually sign a settlement agreement, but the protected conversation itself is not a gagging order.
"My employer said it's protected, so it must be." Labelling a conversation as "protected" does not automatically make it so. Whether s.111A applies depends on the substance, not the label. If the discussion isn't genuinely about termination on agreed terms, the protection may not apply. And if your employer's conduct during the conversation is improper, the protection falls away.
"I've lost all my rights because I had a protected conversation." You haven't. The conversation itself doesn't change your legal rights. If you're later dismissed unfairly, you can still bring a claim. You just may not be able to refer to what was said in that particular conversation as evidence in an ordinary unfair dismissal case.
Frequently Asked Questions
Can my employer force me to have a protected conversation?
No. Protected conversations are voluntary. You can decline to participate or leave the meeting at any time. If your employer pressures you into staying, that could constitute improper behaviour, which removes the statutory protection.
Does a protected conversation mean I'm about to be sacked?
Not necessarily. It means your employer wants to explore whether you'd be willing to leave on agreed terms. Many protected conversations lead to a negotiated exit that suits both sides. Others lead nowhere, and the employment relationship continues.
Can I record a protected conversation?
There's no law preventing you from recording a meeting, though doing so covertly could affect how a tribunal views your conduct if the matter later goes to a hearing. The recording itself may be admissible in discrimination or whistleblowing claims where s.111A does not apply.
How long do I have to respond to a settlement offer?
The ACAS Code of Practice recommends a minimum of 10 calendar days to consider initial written terms. There's no statutory deadline, but your employer may set their own deadline. If the timeframe feels unreasonably short, say so.
What if I raise a discrimination issue during a protected conversation?
The protection under s.111A does not extend to discrimination claims. If you raise a concern about discrimination during the conversation, or if the reason behind the conversation is related to a protected characteristic, the content of that discussion could become admissible in any subsequent discrimination proceedings.
Does my employer have to tell me in advance that it's a protected conversation?
There's no legal requirement for advance notice, though the ACAS Code suggests this is good practice. In the Gallagher case, the employer used a return-to-work meeting to introduce a settlement discussion without warning. The EAT found this wasn't improper, but acknowledged it was not ideal.
Can I still go through ACAS early conciliation after a protected conversation?
Yes. A protected conversation does not affect your right to contact ACAS, go through early conciliation, or make a tribunal claim. The 3-month-minus-1-day time limit for most tribunal claims runs from the date of the act complained of, not from the date of any protected conversation.
What's the link between protected conversations and COT3 agreements?
If a protected conversation doesn't lead to agreement and you later contact ACAS, any settlement reached through conciliation would be recorded as a COT3. The protected conversation and the COT3 are separate processes, though one can lead to the other.
Sources
- "Settlement Agreements (Code of Practice)", ACAS, 2013 — https://www.acas.org.uk/acas-code-of-practice-settlement-agreements/html
- Employment Rights Act 1996, Section 111A — https://www.legislation.gov.uk/ukpga/1996/18/section/111A
- Enterprise and Regulatory Reform Act 2013, Section 14 — https://www.legislation.gov.uk/ukpga/2013/24/section/14
- Gallagher v McKinnon's Auto and Tyres Limited [2024] EAT — https://www.gov.uk/employment-appeal-tribunal-decisions