We specialise in providing employees with independent legal advice on settlement agreements following protected discussions.
What is a protected discussion?
Section 111A of the Employment Rights Act 1996 enables a confidential conversation to take place between an employer and their employee.
In many ways this provision is similar to the ‘Without Prejudice’ principle. The term ‘Without Prejudice’ is commonly used by lawyers as a means of conducting ‘off the record’ discussions, generally with a view to reaching an agreement to resolve a dispute.
Section 111A states that evidence of pre-termination negotiations (including any settlement offers) will be inadmissible in any legal proceedings.
In the context of an employment dispute it enables an employer to talk to an employee ‘off the record’ and on a confidential basis about terminating their employment and consolidating this in a settlement agreement – without the details of that conversation becoming admissible in any subsequent legal proceedings, such as a claim in an employment tribunal.
The idea behind the provision is that it promotes and encourages an out of court settlement agreement being reached, thereby avoiding the costs, delays and stresses associated with formal legal proceedings.
Because employers can initiate a protected conversation without there being a pre-existing dispute it means they don’t have to give their employees any forewarning.
Exceptions to the general rule
There are however some exceptions to this general rule, such as any occasion when something is said or done which in the employment tribunal’s opinion is ‘improper’. This would include conduct which could be regarded as harassment or bullying.
Employers must therefore exercise caution when dealing with settlement agreements and protected discussions
It is also important to note that it does not apply to all claims. Claims for discrimination, automatic unfair dismissal or unlawful deduction of wages, for instance, are excluded.
An employee who believes they are being unfairly criticised during a Section 111A conversation is still entitled to bring a grievance if they so wish.
Subject to these exceptions any discussions taking place on a protected basis cannot be referred to or relied upon by either party at a later date if a settlement agreement cannot be reached.
Nothing to pay for our advice service
A settlement agreement will only be valid if the employee has taken independent legal advice on it.
The employer will generally pay all of the solicitor’s legal costs. This means that the employee doesn’t have to pay the solicitor themselves for the advice they receive.
So if you have been invited to enter into a settlement agreement following a protected conversation and are looking for experienced solicitors to advise you then call our FREE helpline on 0808 139 1589 or drop us an email.
