Labour Research July 2016

Law Queries

Off the record talks

Q. What is a Section 111A off the record conversation?

A. Under Section 111A of the Employment Rights Act 1996, employers can have discussions with employees about termination of employment which cannot be referred to in subsequent “ordinary ” unfair dismissal proceedings. There is no Section 111A protection for other claims such as automatic unfair dismissal, discrimination and whistleblowing.

Both employers and employees can instigate a Section 111A conversation. The most common situation in which an employer suggests a Section 111A conversation is where the employer is considering dismissal, but wants to avoid a disciplinary/capability proced ure. The Section 111A conversation is used to try and reach agreed termination of employment, usually by offering a termination package.

The conversation must meet certain requirements and, if it does not, may still be admissible in any future unfair dismissal proceedings. To be “off the record”, the conversation must relate to termination of employment, a termination package offer, or negotiations around termination and there must be no “improper behaviour”. 

The Acas Code of Practice on Settlement Agreements lists all forms of harassment, bullying and intimidation, physical assault, victimisation and discrimination as examples of “improper behaviour”.