The law

Protected conversation or without prejudice? They are not the same thing

Somebody in an HR meeting says the words “this is a protected conversation” or “this is without prejudice”, and everyone nods. They are not interchangeable phrases. They are two different rules, from two different places, covering different things — and the difference decides what either side can put in front of a tribunal later.

It is worth twenty minutes of your attention, because if you have a discrimination issue rather than an unfair dismissal issue, the label you were given in the meeting may be doing nothing at all.

The older rule: without prejudice

Without prejudice is a common-law rule, not a statutory one. Its purpose is to let parties to a dispute try to settle it without every concession being quoted back at them if settlement fails.

Two features matter here. First, it applies to any claim — it is a general rule of evidence, not an employment one. Second, and this is the catch, it requires a genuine existing dispute at the time of the conversation. Writing “without prejudice” at the top of a letter does not create one. If there was no dispute when your employer raised settlement — if the first you knew of any problem was the meeting itself — the label may be decorative.

That gap is exactly what Parliament legislated for in 2013.

The newer rule: section 111A

Section 111A was inserted into the Employment Rights Act 1996 by the Enterprise and Regulatory Reform Act 2013 and came into force on 29 July 2013. It creates a statutory confidentiality that does not need a pre-existing dispute:

Evidence of pre-termination negotiations is inadmissible in any proceedings on a complaint under section 111.

And it defines what it is protecting:

“pre-termination negotiations” means any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee.

So an employer can now open a settlement conversation cold, with no dispute on the table, and keep it out of a tribunal. That is what makes the modern “protected conversation” possible at all.

The limit almost nobody mentions

Read the first sentence again, and specifically the last six words: in any proceedings on a complaint under section 111.

Section 111 is the unfair dismissal complaint. That is the whole of what s.111A protects against. It does not cover:

• a discrimination claim under the Equality Act
• a whistleblowing detriment claim
• an automatic unfair dismissal claim
• a breach of contract or unlawful deduction claim

If what you have is one of those, s.111A is not protecting the settlement conversation from it. The employer is back to relying on without prejudice, and without prejudice needs a genuine existing dispute.

This is not a technicality. It changes the shape of the negotiation. An employer who raised settlement out of nowhere, with a person who has a live discrimination issue, may have had a conversation that is fully admissible — including whatever they said about why they wanted that person to leave.

And the limit that has teeth: s.111A(4)

Even within unfair dismissal, the protection is not absolute:

In relation to anything said or done which in the tribunal’s opinion was improper, or was connected with improper behaviour, subsection (1) applies only to the extent that the tribunal considers just.

Two things about that drafting. It reaches anything connected with improper behaviour, not only the improper act itself. And the remedy is discretionary — the tribunal admits as much as it considers just, which could be the entire conversation.

What counts as improper is not exhaustively defined, and the Acas Code gives examples of the kind of pressure that can qualify. Not giving a reasonable amount of time to consider an offer is one of them, which is why the ten-day recommendation matters more than its status as guidance suggests. Others in the same family: telling someone they will be dismissed regardless of the outcome of a process that has not run yet, or physical or verbal intimidation in the meeting.

What this means in practice

If your issue is ordinary unfair dismissal and you were given reasonable time, the conversation is protected and both sides can speak freely. That is the system working as designed, and it is usually to your advantage too — you can say what you want without it appearing in a bundle.

If your issue involves discrimination or whistleblowing, take advice before you assume the conversation was confidential. It may not have been, in either direction.

If you were pressured — a deadline of a day or two, or a statement that the outcome is already decided — that is worth recording in writing at the time, factually and without accusation. A short email saying “you told me on Tuesday that I would be dismissed regardless” is not a threat. It is a note of what was said, and it becomes considerably more useful later than a recollection does.

What none of this changes

The rules above are about what can be said in evidence. They do not affect whether the agreement itself works. That is a separate question with a separate answer: the six conditions in section 203(3) of the Employment Rights Act 1996, all of which have to be met for the waiver of your tribunal rights to be valid — including the independent advice that your employer usually pays for.

A conversation can be perfectly protected and produce an agreement that does not bind you. And a conversation can be fully admissible and produce an agreement that binds you completely. They are different questions, and it is worth being clear which one you are asking.

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