An employer’s guide to protected conversations

When dealing with a difficult dispute at work, protected conversations can be a positive way of resolving things between an employer and an employee.

In this blog, our employment lawyers explain what a protected conversation is, how they work and how they can be beneficial in resolving workplace disputes.

This blog was originally published in December 2024 and updated in August 2026 to include recent case law.

What is a protected conversation?

A protected conversation is a discussion between an employer and an employee where they discuss ending the employment on agreed-upon terms.

Protected conversations do not have to be in person; they can be in a letter, via email, on the telephone or by video call.

A protected conversation is generally considered ‘off the record’. This means the discussion will not be able to be used in any future tribunal proceedings, including an unfair dismissal claim or a constructive dismissal claim.

What’s the difference between a protected conversation and a without-prejudice discussion?

Both protected conversations and without-prejudice discussions can be useful ways of resolving workplace disputes and/or bringing an end to employment without conflict.

The main difference between these types of discussions is that without-prejudice discussions are only protected when there is an existing dispute, such as a grievance.

For example, if an employee is not performing, despite attempts to manage and improve this, the employer might decide to have an off-the-record meeting with them to discuss ending their employment (and most of the time, the employee will be expecting this outcome). This would be classed as a protected conversation.

If an employee has a dispute, such as a grievance, an employer can request a without-prejudice meeting where both parties agree to part ways.

When can I ask for a protected conversation?

There are many reasons or situations where it might be appropriate to request a protected conversation with an employee. These include:

• Where an employer wants to avoid stress or added stress on the employee by going through the internal dismissal process
• Where an employer considers a protected conversation a better use of time and resources than going through the performance or disciplinary process
• To reach a settlement outside of an employment tribunal

Requirements for protected conversations

It is important to remember that, while protected conversations can be a beneficial and sometimes simpler way of bringing employment to an end, they are not without legal requirements. These are:

• There must be an issue regarding the employee’s performance or conduct.
• The employer must notify the employee that they wish to have a protected conversation. As part of this, you must let them know that anything discussed in the conversation cannot later be brought into question as part of a Tribunal case, including an unfair or constructive dismissal claim.
• The employer must explain the employee’s offer within the protected conversation. This offer can include an exit payment, an opportunity for the employee to leave without working their notice period, providing a good reference, a release from restrictive covenants and/or a contribution towards legal fees for a settlement agreement.
• The employee must be given a reasonable time to consider the offer (according to Acas, this is 10 days).
• The employer must not pressurise the employee into accepting the offer.
• Where possible, allow the employee to bring a companion to the meeting and be mindful of how the meeting is set up. This context can be taken into account at an employment tribunal.

What should employers bear in mind with protected conversations?

If you are considering having an off-the-record meeting with an employee, when making your offer, you might want to think about:

• The types of claims the employee may have, as such protected conversations may only apply to certain types of cases
• When the employment will end, and whether you require the employee to work their notice period
• What happens to the employee’s holiday allowance, bonus and benefits?
• Whether you want to provide an exit payment or compensation
• Whether you will provide a good reference to enable the employee to find new employment
• Whether the employee has a restrictive covenant in their employment contract
• Whether you want to offer a settlement agreement, and if you are willing to contribute towards the legal costs

If you are considering terminating an employee’s employment in a protected conversation or a without-prejudice conversation and you are unsure about any of the above, it is important to seek legal advice. An employment solicitor can advise you on what to consider and what to put in place to ensure any conversation runs smoothly and that you are protected should the employee bring a claim against you in the future.

Recent case law: limits of protection

Protection under Section 111A of the Employment Rights Act 1996 (ERA) is not as broad as it might first appear.

In the recent case of Tarbuc v Martello Piling Ltd [2026] EAT 58, the Employment Appeal Tribunal confirmed that Section 111A only protects ordinary unfair dismissal claims. It does not automatically cover:

• Discrimination claims
• Whistleblowing claims
• Automatic unfair dismissal claims
• Unlawful deductions from wages claims
• Other statutory claims

This means that if an employee brings more than one type of claim, the same protected conversation may be admissible as evidence for some claims but not others. Employers should not assume that labelling a discussion as a protected conversation shields it from every possible claim.

The EAT also confirmed that improper conduct is not just about what was said during the meeting itself. The wider context in which the meeting was arranged and conducted can be relevant, too.

Read a full breakdown of Tarbuc v Martello Piling Ltd here.

Contact our employment lawyers in Bristol

For common-sense advice on protected conversations or any other employment-related issue, contact our specialist employment law solicitors. Call 0117 325 2929 or fill out our online enquiry form.