Exploring the Power of Protected Discussions under the Employment Rights Act

In the realm of employment law, the concept of protected discussions has emerged as a transformative tool for both employers and employees alike. Central to this is Section 111A of the Employment Rights Act 1996 (ERA), a provision that has reshaped the landscape of pre-termination negotiations. 

The Origin of Protected Discussions

Over a decade ago, the introduction of Section 111A ERA 1996 heralded a new era in employment law. Termed as "protected discussions," these dialogues represent a significant departure from traditional termination procedures. They provide a confidential platform for employers and employees to engage in frank discussions regarding the termination of employment contracts, with the aim of reaching mutually agreeable terms.

Understanding the Significance

Protected discussions are a useful resource for both employers and employees, with both being able to instigate such discussions. 

At the core of protected discussions lies the objective of facilitating constructive dialogue between employers and employees. Unlike formal disciplinary or dismissal processes, these discussions offer a more flexible and amicable approach to resolving employment issues. By providing a safe space for negotiation, Section 111A ERA 1996 empowers employers to address concerns proactively.

You can only have a without prejudice discussion with an employee if you’re trying to resolve an existing dispute or if you anticipate that litigation is likely to occur if your negotiations break down. However, an employer may want to propose a termination of employment on mutually agreed terms before there is any dispute with the employee e.g. an employee may wish to dismiss an employee for poor performance and section 111A ERA 1996 enables them to do so. 

Improper Behaviour

Employers must tread carefully to ensure compliance with legal and ethical standards. For instance, conversations must be conducted in good faith and without coercion or improper behaviour. If you abide by the rules, the evidence of such negotiations in inadmissible in unfair dismissal proceedings.  However, if improper behaviour is present e.g. pressurising an employee to accept an offer, then the conversations may no longer be ‘protected’ and may be capable of being used as evidence. It is therefore, paramount that both parties understand that they are having a protected discussion and the implications.  

Settlement Agreements 

If you are able to reach an agreement, it may be appropriate for a settlement agreement to be drawn up. 

A settlement agreement is a legally binding arrangement between two parties; the employer and an employee. 

The agreement sets out the terms and conditions that have been agreed between the employer and an employee to end an employment relationship or resolve a workplace issue. 

By signing the settlement agreement, the employee agrees to waive his or her right to bring claims covered by the agreement to an Employment Tribunal or Court. 

Settlement agreements play a legitimate and valuable role in reducing litigation by resolving disputes before they reach the Tribunal. The use of such agreements is supported by ACAS guidance. 

There are a number of legal formalities that must be complied with to ensure a settlement agreement is valid: 

• The agreement must be in writing.
• The agreement must relate to a particular complaint or proceedings.
• The employee must have received advice from a relevant independent adviser, such as a lawyer or a certified and authorised member of a trade union.
• The independent adviser must have a current contract of insurance or professional indemnity covering the risk of a claim by the employee in respect of loss arising from the advice.
• The agreement must identify the adviser.
• The agreement must state that the applicable statutory conditions regulating the settlement agreement have been met.

If you need advice or support or have any questions, please contact our employment law team today.