Protected Conversations Archives

Questions we’ve received from clients this month

In this month’s roundup, our team addresses two key operational risks facing HR leaders: maintaining admissibility privilege under section 111A during settlement discussions, and navigating the evolving timeline for zero-hours contract reforms.

1. How can we ensure a protected conversation under section 111A remains protected?

Section 111A of the Employment Rights Act 1996 provides useful protection, but it is not absolute. To maximise the likelihood that a conversation remains inadmissible in any subsequent proceedings, employers should:

Keep the discussion focused on settlement. Avoid using the meeting as an opportunity to criticise the employee’s performance or conduct in detail.

Avoid improper behaviour. Protection can be lost where there is undue pressure or intimidation. For example, telling an employee they will be dismissed if they do not accept the offer is likely to jeopardise the protection. Following a pre-prepared script is advisable as it will not only help you retain focus, but you can disclose the script as evidence to counter any challenge about the content of the meeting, if required.

Give employees sufficient time to consider the offer. The Acas Code recommends allowing at least 10 calendar days to consider a written settlement agreement unless the parties agree otherwise.

Remember the limits of section 111A. The protection applies only to ordinary unfair dismissal claims. It does not prevent discussions being relied upon in claims such as discrimination, whistleblowing, automatic unfair dismissal or breach of contract.

Consider relying on “without prejudice” as well. Where there is already an existing dispute, the without prejudice rule may provide broader protection than section 111A. In some cases, employers may benefit from both protections applying simultaneously, so where there is an existing dispute, use both in your correspondence to broaden the scope of protection.

2. Are zero-hours contracts still being banned because of the Employment Rights Act 2025 and when will the changes be implemented?

Despite the headlines, the Employment Rights Act does not outlaw zero-hours contracts. Instead, it introduces a package of rights designed to end one-sided flexibility and to give workers greater certainty.

That said, the proposed regime is complex and the new duty to offer a qualifying employee a contract that reflects the hours regularly worked over a reference period means that the use of zero-hours contracts will likely reduce.

Whilst the government roadmap still indicates that the reforms related to zero-hours/low-hours workers will take effect at some point in 2027, it is clear that the detail of how this regime will work in practice remains unresolved.

The government has opened a consultation on the reforms which closes on 25 August 2026, and it is clear from the proposals within the consultation that the planned changes could be watered down. There are also some significant gaps, meaning a further consultation may still be required after this one closes, meaning that timelines for implementation may be pushed back.

As the detail of this complex new regime is still uncertain, there isn’t a need to make any changes at this time. Instead, have it on your radar, and we will keep you updated to ensure you can adequately prepare.

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Lousha Reynolds
Refreshing Law

From time to time you may send out a letter offering an employee, via a protected conversation, a settlement package. In a case called Meaker v Cyxtera Technology UK Ltd, the employee, in receipt of such a letter marked “without prejudice” believed that that letter constituted an effective dismissal. This is because the letter set out the particular date the employer was proposing that he would leave, the different payments he would get and when. He argued that this was a sufficiently clear letter to be a dismissal when it came to bringing an unfair dismissal claim under the Employment Rights Act 1996.

The relevance of this in the Employment Tribunal was whether he had brought his claim in time. If the “without prejudice” letter did, as he said, constitute a dismissal then his claim was going to be out of time. Alternatively, if the date of dismissal was the date on which he received payment in lieu of notice and holiday payment, then his claim was going to be in time.

The Tribunal agreed that the “without prejudice” letter was an effective letter of dismissal but the employee appealed. The Employment Appeal Tribunal agreed that that letter created a clear decision to dismiss, even though it was marked “without prejudice” and enclosed a draft Settlement Agreement, without terms providing for a mutual termination not having, in fact, been agreed. In effect, both the Tribunals viewed the letter as terminating the employee’s contract unilaterally.

As always the background facts were case specific – the employee had hurt his back and couldn’t do his job but wasn’t so severely affected that he met the test for income protection to kick in. There had been numerous discussions about what to do next. The employer sent the offer letter and draft settlement following a discussion with HR and actually processed the payment in lieu of notice even though agreement had not been reached.

The first moral of the story is never ever make payments in connection with a settlement agreement until it is all sorted!

This case has, however, given me reason to go back and review the standard kind of offer letter that I see on a regular basis: where the employers will state a termination date for example, the payment in lieu of notice that might be made, payment in lieu of holiday that might be made and an ex gratia payment that might be given in addition to things like reference and other benefits like outplacement counselling.

Employers run the risk that these letters can be seen as dismissal letters (any employee who has ever been on the receiving end of such an offer letter will tell you that they feel that it’s such a strong signal from the employer that the relationship is over and that they could not in fact continue). Is it worth drafting them in a different way to account for this risk? For example, instead of setting out a termination date, you may suggest to the employee that a leaving date would be agreed when the terms of a settlement agreement are agreed – this leaves it uncertain.

Secondly, the employer may wish to clarify that in no way should the employee take receipt of the letter as indicating any intention to bring their employment to an end.

You might also decide to say that holiday pay is something that would have to be agreed once the parties have discussed what the accrued holiday actually is.

Alternatively, you need to be aware that every time you do provide such an offer letter that it is open to the employee to argue that it brings an end to their employment, despite the fact that it is marked “without prejudice” and probably subject to a protected conversation.

Anna Denton-Jones
Refreshing Law