Section 111A (pre-termination negotiations)

A statutory shield that lets an employer raise a settlement offer before any dispute exists, without it being used as evidence later — but only for ordinary unfair dismissal claims, and only while the conversation stays within bounds.

Does section 111A mean my employer can say anything to me without it ever being used against them?

No. Section 111A only makes pre-termination negotiations inadmissible in an ordinary unfair dismissal claim. It does not protect the same conversation from being used as evidence in a discrimination claim, a whistleblowing claim, an automatically unfair dismissal claim, or a breach of contract or wrongful dismissal claim. If your case includes any of those alongside unfair dismissal, the conversation can still be put before the tribunal for the other claims even while it stays inadmissible for the unfair dismissal claim itself.

Do I need an existing dispute for section 111A to apply, like with 'without prejudice' discussions?

No, and that is the main reason section 111A exists. The common law 'without prejudice' rule only protects discussions aimed at settling a dispute that already exists between the parties. Section 111A was introduced specifically to let an employer open a settlement conversation — a protected conversation — before any dispute has arisen at all, without that conversation being usable as evidence in a later ordinary unfair dismissal claim.

What counts as 'improper behaviour' that removes the protection?

The ACAS Code of Practice on Settlement Agreements gives examples: harassment, bullying or intimidation, physical assault or the threat of it, victimisation, discrimination, and undue pressure — for instance, telling an employee they will be dismissed if they do not accept an offer, before any fair process has even started, or giving them an unreasonably short time to decide. Even then, section 111A(4) only removes the inadmissibility 'to the extent the tribunal considers just' — it is not an automatic all-or-nothing switch.

How long do I have to consider a settlement offer made in a protected conversation?

The ACAS Code of Practice recommends a minimum of ten calendar days to consider the proposed written terms and take advice, unless both sides agree otherwise. Giving noticeably less than that — a handful of days, or expecting an answer in the same meeting — is one of the clearer examples of undue pressure that can affect how a tribunal treats the conversation later.

What is the difference between a protected conversation and a settlement agreement or COT3?

A protected conversation under section 111A is the discussion itself — the negotiation. A settlement agreement and a COT3 are the two kinds of document that can result if that negotiation succeeds: a settlement agreement is a private contract requiring independent legal advice, while a COT3 is recorded through an ACAS conciliator. Many protected conversations lead nowhere, in which case there is no agreement at all, only a conversation that (for unfair dismissal purposes) cannot be used in evidence.

If my employer handled the conversation improperly, does my unfair dismissal claim automatically succeed?

No. Losing the section 111A protection only affects what evidence the tribunal can look at — it makes the conversation itself admissible to the extent the tribunal considers just. It does not decide the underlying question of whether your dismissal was fair. The improper conduct becomes one more piece of evidence the tribunal can weigh, not a shortcut to winning the claim.

What section 111A actually does

Section 111A of the Employment Rights Act 1996 was inserted by the Enterprise and Regulatory Reform Act 2013, at the same time as "compromise agreements" were renamed settlement agreements. Both changes were aimed at the same goal: making it easier for an employer and employee to agree an exit on reasonable terms, without a formal dispute having to exist first, and without the conversation that got them there becoming a weapon in litigation afterwards.

The mechanism itself is narrow and precise. Section 111A(1) says that evidence of pre-termination negotiations — defined in section 111A(2) as any offer made, or discussions held, before the employment ends, aimed at ending it on terms both sides agree — is inadmissible in proceedings on an unfair dismissal complaint. In plain terms: an employer can approach an employee, raise the idea of a settlement, make an offer, and have that conversation go nowhere, without either side being able to put the fact of the conversation, or what was said in it, before an employment tribunal later if the employee is dismissed and brings an ordinary unfair dismissal claim.

This matters because, without section 111A, raising an exit conversation carries real risk for an employer. If an employer floats a settlement and the employee later claims unfair dismissal, the employee might otherwise point to the offer itself as evidence that the employer had already decided to dismiss before any fair process had run its course. Section 111A removes that risk for the unfair dismissal claim specifically, which is also why employees should understand its limits before assuming a conversation is more protective than it actually is.

What it does not cover — the limits that matter most

Section 111A is deliberately narrow, and the limits are where people most often get it wrong. The protection in section 111A(1) applies specifically to a complaint under section 111 of the Employment Rights Act 1996 — the ordinary unfair dismissal complaint. Section 111A(3) carves out an exception even within that: it does not apply where, on the claimant's own case, they are to be treated as unfairly dismissed under one of the automatically unfair dismissal provisions — for example, dismissal connected to whistleblowing, trade union activity, or asserting a statutory right.

More importantly, section 111A says nothing at all about claims brought under other legislation. It does not touch discrimination claims under the Equality Act 2010, whistleblowing detriment claims, or ordinary breach of contract or wrongful dismissal claims in the civil courts. If an employee brings a combined claim — unfair dismissal alongside, say, a disability discrimination claim — the protected conversation can still be entirely inadmissible for the unfair dismissal element while remaining fully admissible evidence for the discrimination element. This is exactly what happened in Tarbuc v Martello Piling Ltd, where the tribunal had excluded the meeting evidence from the case altogether; the Employment Appeal Tribunal held that was too broad, because section 111A does not reach claims outside ordinary unfair dismissal.

The practical message for an employer is that a protected conversation is not a general-purpose shield that makes a settlement discussion risk-free across every possible claim. For an employee, it means that raising a genuine discrimination or whistleblowing concern during, or shortly before, a settlement conversation does not get buried by section 111A — that evidence can still surface in the right claim.

Losing the protection: improper behaviour

Section 111A(4) removes the inadmissibility where the tribunal considers that anything said or done in the negotiations was improper, or was connected with improper behaviour — but even then, the evidence becomes admissible only to the extent the tribunal considers just. This is not a simple switch that turns the whole conversation into open evidence the moment something improper is found; the tribunal has discretion over how far to let the door open.

The ACAS Code of Practice on Settlement Agreements, which tribunals take into account even though it is not itself binding legislation, gives examples of what counts as improper: harassment, bullying or intimidation, physical assault or the threat of it, victimisation, discrimination, and undue pressure — which the Code illustrates with things like telling an employee they will be dismissed if they do not accept an offer, before any fair process has even begun, or giving them an unreasonably short window to decide. The Code recommends allowing a minimum of ten calendar days to consider the proposed written terms and take advice, unless the parties agree otherwise.

Tarbuc v Martello Piling Ltd is a useful illustration of how this plays out. The Employment Appeal Tribunal held that the employment tribunal had taken too narrow a view of "improper" by looking only at the specific words used in the settlement meeting, rather than the surrounding circumstances — including how much notice the employee was given of the meeting and whether he was allowed to bring a companion. Improper behaviour, in other words, is assessed on the whole picture around the conversation, not just a transcript of what was said.

How it connects to without prejudice, settlement agreements and COT3

Section 111A is often confused with the common law "without prejudice" rule, and the two overlap in effect but not in how they arise. Without prejudice protection requires an existing dispute between the parties — it protects genuine attempts to settle something already in contention. Section 111A needs no existing dispute at all: an employer can open a settlement conversation out of nowhere, with no prior complaint or grievance on the table, and still have that conversation protected for unfair dismissal purposes. This is precisely the gap section 111A was introduced to fill, since without prejudice privilege alone would not have covered a clean opening approach.

If a protected conversation succeeds, it produces one of two documents. A settlement agreement is a private contract, drafted to meet the conditions in section 203 of the Employment Rights Act 1996, which requires the employee to take independent legal advice before signing. A COT3 is the alternative route, recorded through an ACAS conciliator, which does not require independent advice. Either can follow from a protected conversation, and the choice between them is a separate decision from the conversation itself. The ACAS Code of Practice on disciplinary and grievance procedures is a different document again — it governs internal disciplinary and grievance fairness generally, whereas the Code of Practice on Settlement Agreements is the one that specifically covers protected conversations and improper behaviour.

An employer calls an employee into an unscheduled meeting with no advance notice, tells him his role is "not secure" and that redundancy is likely if he does not accept a settlement offer there and then, refuses his request to bring a colleague into the room, and gives him five days to respond. No disciplinary or redundancy process has actually started. The employee declines, is later dismissed, and brings claims for unfair dismissal and age discrimination.

5 days — below the ACAS 10-day minimum

Redundancy threatened before any process began

Improper behaviour — evidence admissible for unfair dismissal to the extent just; fully admissible for the discrimination claim regardless

Following the approach in Tarbuc v Martello Piling Ltd, a tribunal would look at the whole picture — no notice, no companion, a short deadline, and an unprompted redundancy threat — rather than just the specific words used, and could well find the conversation was tainted by improper behaviour for the purposes of the unfair dismissal claim. Even without that finding, section 111A would never have protected the conversation from being used in the age discrimination claim in the first place, since the protection in section 111A(1) only ever reaches complaints under section 111.

Settlement agreement

ACAS Code of Practice

Employment Rights Act 1996, section 111A

Enterprise and Regulatory Reform Act 2013

ACAS Code of Practice on Settlement Agreements (2013)

Tarbuc v Martello Piling Ltd [2026] EAT 58

Settlement agreements

Section 111A Pre-Termination Negotiations — Employment Tribunal Glossary

What section 111A protected conversations cover, the improper behaviour exception, and why the protection does not reach discrimination or whistleblowing claims.