Negotiation and arbitration

Pre-termination negotiations or protected conversations (England, Wales & Scotland)

Pre-termination negotiations (sometimes called protected conversations) are confidential talks held with workers with a view to ending their employment on agreed terms.

By law, neither the employer nor worker can use pre-termination negotiations as evidence in an unfair dismissal claim.

This will apply unless either party has shown improper behaviour, e.g. harassment, intimidation, assault, victimisation, discrimination or putting undue pressure on a party (such as not allowing enough time to consider the offer or threatening dismissal if the offer is rejected). See Acas's code of practice for more information.

Pre-termination negotiations can still be used as evidence in claims of Discrimination and Termination of the contract.

'Without prejudice' communications

Communications for the purpose of settling a dispute that are marked without prejudice can't be used as evidence in court claims. This is broader than the pre-termination negotiations as it applies to all types of claims. However, you must have an existing dispute for the use of without prejudice communications to be valid.

Arbitration

If you can't reach an agreement, one alternative to going to a tribunal is arbitration.

England, Wales and Scotland

Arbitration is the adjudication of the dispute by Acas.

This option is currently only available for disputes involving unfair dismissal or flexible working.

An independent arbitrator hears the case and delivers a legally binding decision in favour of one party.

Arbitration is a voluntary process, available where both parties agree to sign up to the scheme and abide by the arbitrator's decision.

Benefits of ACAS arbitration include:

• A speedy, private, informal hearing
• No cross-examination
• Limited grounds for review of the arbitrator's decision.

Northern Ireland

The Labour Relations Agency (LRA) offers an arbitration service. This option is available for resolution of most disputes, including those involving redundancy payments, discrimination, owed payments, unfair dismissal, constructive dismissal and flexible working disputes.

An independent arbitrator hears the case and delivers a legally binding decision in favour of one party.

Arbitration is a voluntary process, available where both parties agree to sign up to the scheme and abide by the arbitrator's decision. However, by selecting this option both parties waive their rights to take the case to tribunal.

Benefits of LRA arbitration include:

• A speedy, confidential, informal hearing
• Non-legalistic
• The arbitrator's decision is final and binding

Early conciliation

Both Acas and the LRA also offer a conciliation service, which workers are usually expected to consider before taking a claim to a tribunal.