Chris Hadrill, the partner in the employment team at Redmans, analyses the effect of “protected conversations” (also known as “pre-termination negotiations”) under section 111A of the Employment Rights Act 1996
(1) Evidence of pre-termination negotiations is inadmissible in any proceedings on a complaint under section 111.
This is subject to subsections (3) to (5).
(2) In subsection (1) “ pre-termination negotiations ” means any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee.
(3) Subsection (1) does not apply where, according to the complainant’s case, the circumstances are such that a provision (whenever made) contained in, or made under, this or any other Act requires the complainant to be regarded for the purposes of this Part as unfairly dismissed.
(4) In relation to anything said or done which in the tribunal’s opinion was improper, or was connected with improper behaviour, subsection (1) applies only to the extent that the tribunal considers just.
(5) Subsection (1) does not affect the admissibility, on any question as to costs or expenses, of evidence relating to an offer made on the basis that the right to refer to it on any such question is reserved.
Section 111A means that any “pre-termination negotiation” (also known as “protected conversations“) between an employer and an employee which meets the following criteria cannot be put before a court or tribunal:
If the above criteria are met then the only way that the discussions could be admissible would be if anything is said or done which is “improper” (e.g. if the employer engages in improper behaviour by threatening to fire the employee if they don’t accept any settlement offer made then this could mean that the contents of the conversation could be used in an Employment Tribunal claim). What is “improper” for the purposes of section 111A is explored below.
Under section 111A(1) of the Employment Rights Act 1996 (“ERA 1996”) “pre-termination negotiations” can be shielded from the Employment Tribunal in an unfair dismissal claim unless there has been “improper behaviour”. Unlike the common law “without prejudice rule” (see our article on what without prejudice means), there is no need for the parties to be in dispute in order for the section 111A rule to apply. Protection from admissibility includes the very fact that pre-termination negotiations have taken place, not just the details of those negotiations.
The effect of section 111A is that an employer and their employee can have ‘full and frank’ discussions regarding problems at work, and not have the contents of these discussions used against them in an Employment Tribunal claim – the idea is that this encourages the parties to be honest with each other and increases the prospects of settling any claim that the employee might have.
Pre-termination negotiations under section 111A can be put before the Employment Tribunal in, broadly, three circumstances:
In these circumstances the fact and content of any offers or discussions may be referred to in proceedings unless they are also covered by the “without prejudice rule”.
If anything said or done is improper or connected with improper behaviour, evidence of pre-termination negotiations can be put in evidence before the Employment Tribunal only if the Tribunal thinks it is just to do so (section 111A(4), Employment Rights Act 1996).
This means that the following must be examined by the Employment Tribunal before the pre-termination negotiations can be put in evidence:
So what is improper behaviour? The language of the legislation is left very broad, so it is up to the Employment Tribunal in any given case what it defined as “improper behaviour”.
Some examples of improper behaviour could include (please note that this list is not exhaustive):
Any type of harassment, bullying and intimidation, including through the use of offensive words or aggressive behaviour;