Protected Conversations & Employment Tribunals… What Gives?

Protected conversations are an interesting facet to employer/employee interactions, particularly when it comes to Settlement Agreements.

The general gist under the Employee Rights Act 1996 is that the content of protected conversations is inadmissible at an Employment Tribunal, in certain circumstances. Protected conversations pack their main protective punch with regard to ordinary unfair dismissal proceedings. For a Tribunal addressing an ordinary unfair dismissal claim, the content of a protected conversation at, let’s say, a meeting to discuss a Settlement Agreement, is not only protected but the very fact that a protected conversation even took place is also inadmissible.

So, in the case that a Settlement Agreement is presented to an employee for redundancy purposes, for example, where the employer has followed protocol, then the employee cannot rely on a protected conversation in a later Tribunal if they wish to pursue a claim for ordinary unfair dismissal.

So when is this not the case?

When is a protected conversation admissible at an Employment Tribunal?

Following protocol is critical, otherwise the benefit of a protected conversation can be waived. Examples of when this might occur are when:

  • An employer has not given an employee enough time to consider a proposal
  • An employer has not told the employee they must seek independent advice
  • The offer in the Settlement Agreement was presented as a ‘done deal’ too early in the discussions
  • Any other options available to an employee have not been explained
  • The employer wasn’t prepared to answer questions, or has gone as far as to remove the ability for the employee to ask questions

This is not a complete list of scenarios, but it gives you a good picture.

A quick word about ‘without prejudice’ conversations…

If an employee makes a claim for discrimination or breach of contract, however, the deal’s off, full stop, on protected conversations. So in these instances, an employer may choose to hold a “without prejudice” conversation instead. For more information on the difference between the two types of conversation, we’ve written an article that may be of help. Just click here.

Take advice as soon as possible

Seeking advice from an experienced employment law professional who deals with Settlement Agreements and Tribunals on a regular basis is crucial to assure the best outcome for your circumstances. If you have been offered a Settlement Agreement, have had a discussion with your employer, but feel there has been a breach of contract or other issues, then call us as soon as possible on 0800 304 7255. We’re here to help.


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