What are 'protected conversations' in employment law and when can they be used as evidence?

Confidential pre-termination negotiations

It is possible to offer terms to end an employee's contract on a confidential basis if:

• This constitutes a genuine attempt to settle an existing dispute. This is the without prejudice rule. Such conversations cannot be used as evidence in an employment tribunal unless they have been tainted by fraud, undue influence or 'unambiguous impropriety'.

• Where there is no existing dispute, section 111A provides similar protections but is limited to normal unfair dismissal claims only. This means that the content of a protected conversation can be used in other types of claim, for example discrimination or automatically unfair dismissal.

An example of a recent case

Ms Harrison resigned, claiming constructive unfair dismissal as well as sex and pregnancy or maternity discrimination.

Her claim referred specifically to a letter headed 'confidential settlement proposal', offering to terminate her employment under a settlement agreement. The employer argued that Ms Harrison could not rely on the letter because it was a protected conversation under s111A.

The Employment Appeal Tribunal confirmed that where an employee asserts that the reason for dismissal was automatically unfair (such as pregnancy), then the details of a protected conversation are not protected and can be used in evidence without the tribunal having to make a finding of fact beforehand.

However, where an employee alleges improper conduct, the tribunal needs to make a finding on that allegation to decide if the protected conversation is admissible.

What does it mean for employers?

• Only use pre-termination negotiations and settlement agreements in appropriate circumstances.

• Carefully consider the provisions of section 111A and the without prejudice rule before making an offer.

• Ensure that protected conversations are not conducted in a manner which could be seen as discriminatory or as putting the employee under undue pressure.

  • Nadjia Zychowicz is a solicitor at award-winning law firm VWV, which has offices in Clarendon Road, Watford