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Are Protected Conversations Always Confidential?

on Friday, 11 October 2019.

In this article we explore the circumstances in which 'protected conversations' can be used as evidence in an employment tribunal.

Confidential Pre-Termination Negotiations

Offers to end an employee's contract on agreed terms can be made on a confidential basis if the without prejudice rule applies or if the offer forms part of a protected conversation under Section 111A of the Employment Rights Act (ERA).

  • The without prejudice rule applies to any offer which is a genuine attempt to settle an existing dispute. Without prejudice conversations cannot be used as evidence in any employment tribunal claim unless they have been tainted by fraud, undue influence or 'unambiguous impropriety'.

  • A protected conversation under section 111A provides similar protections to the without prejudice rule but will apply even if there is no existing dispute between the employer and then employee.

    However, the protection offered by S111A 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 claims or claims for automatically unfair dismissal.

    S111A also does not apply where there has been 'improper behaviour' in relation to the settlement discussions or offer.

Harrison v Aryman

Ms Harrison resigned in July 2017, claiming constructive unfair dismissal as well as sex and pregnancy or maternity discrimination.

Her claim referred specifically to a letter in August 2016, headed 'confidential settlement proposal', which included an offer 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.

At a preliminary hearing, the Employment Tribunal agreed. The employee appealed.

The Employment Appeal Tribunal (EAT) 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 wants to use details of a protected conversation as evidence because of improper conduct, then the tribunal will have to make a finding as to whether there was improper conduct (which the tribunal failed to do in this case).

What Does It Mean for Employers?

Pre-termination negotiations and settlement agreements are helpful tools for employers but should be reserved for use in appropriate circumstances.

Employers should be cautious when carrying out protected conversations and ensure that offers are made carefully considering the provisions of section 111A and without prejudice rules. Ensure that these conversations are not conducted in a manner which could be seen as discriminatory or as putting the employee under undue pressure.

For specialist advice about protected conversations, please contact Nadjia Zychowicz in our Employment Law team on 01923 919 375 or complete the below form.

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