What is a protected conversation?

There are situations where an employer wants to have a frank conversation with an employee about ending their employment — perhaps due to performance concerns, a change in business direction, or a mutual recognition that the role is not working — without that conversation being used as evidence in a subsequent employment claim. A protected conversation is the legal mechanism that can, in certain circumstances, allow this.

A protected conversation — sometimes referred to as an off-the-record conversation — is a pre-termination negotiation between an employer and an employee about ending the employment on agreed terms. Under the Employment Rights Act, the contents of such a conversation are inadmissible in an ordinary unfair dismissal claim, provided the conversation was not accompanied by improper behaviour such as harassment, discrimination, or undue pressure. The protection does not apply to automatically unfair dismissal claims.

Protected conversations are a useful tool in specific circumstances but are not appropriate for all situations — the protection is narrower than many employers assume, and the conditions that must be met require care. Seeking employment law advice before initiating such a conversation is strongly recommended. Our guide to protected conversations covers when they are appropriate and how to conduct them correctly.