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When is a protected conversation not protected?

SO
BY Scott O'Connor
Employment law

A recent Employment Appeal Tribunal (EAT) decision, Harrison v Aryman Ltd, has provided a useful reminder that pre-termination negotiations may not always count as protected conversations and are capable, therefore, of being admissible in subsequent legal proceedings.

A protected conversation take place when an employer and employee engage in confidential discussions which are kept ‘off the record.’ This is generally utilised when an employment relationship is not working and one, or both parties are looking to mutually agree to terminate the relationship. Unlike a ‘without prejudice’ conversation, there does not need to be a pre-existing dispute for discussions to be kept confidential and inadmissible in any potential Employment Tribunal (ET) proceedings. Protected conversations are covered in s.111A of the Employment Rights Act 1996 (ERA) which was amended to afford greater flexibility to both employers and employees so that protected conversations could not be relied upon in any future litigation.

That being said, employers should be aware that there are limitations to the protections provided by s.111A with regards to these pre-termination negotiations. For example:

  1. The protection applies only if an employee brings ordinary unfair dismissal proceedings. It will not apply where the employee alleges that they have been discriminated against or that the dismissal was automatically unfair, such as where the employee claims to have been dismissed for making a protected disclosure. Under these circumstances, evidence of these negotiations will be admissible.

  2. If either party engages in “improper behaviour” then the protection will be extended to the point where the tribunal considers it just that they are inadmissible. The Acas Code provides examples of improper behaviour which include harassment, bullying or intimidation and undue pressure to accept the offer to terminate employment.

In this EAT case,  Ms Harrison resigned in July 2017 and brought a claim against her employer for constructive unfair dismissal and discrimination on the grounds of sex and pregnancy and maternity discrimination. Her claim referred to a letter received from her employer in August 2016, following her announcement that she was pregnant, offering to discuss the termination of her employment. The employer argued that the letter Ms Harrison referred to in proceedings was protected under s.111A of the ERA. However, Ms Harrison claimed that that the exceptions to the application of s.111A applied to the letter because her claim was in relation to an automatic unfair dismissal and her employer had acted improperly in making the offer.

Following an ET decision which decided that the letter was protected under s.111A of ERA, the EAT decided that before concluding that pre-termination negotiations are inadmissible, the judge should proactively consider the limitations contained within s.111A rather than be led by submissions from either party in proceedings.

The EAT concluded that when it is alleged that the employee was dismissed for an automatically unfair reason then the pre-termination negotiations will not be protected and will be admissible in evidence. Furthermore, if there is an allegation of improper behaviour from either party, the judge must hear evidence and make a finding of fact in relation to the improper behaviour which is being alleged to determine this point.

Employers engaging in protected conversations to mutually terminate an employee must remember to be cautious when contemplating making an offer. Although an employer may assume that the discussion will fall within s.111A of ERA, there are exceptions and they may be challenged during any subsequent legal proceedings.  Employers would be wise to consider all of the surrounding circumstances before engaging in protected conversations and should make sure that they meet the requirements set out in the Acas Settlement Agreements Code of Practice. If you are thinking of having a protected conversation but are not sure if this would be covered by s.111A of ERA or need any advice on the process then get in touch with your dedicated employment solicitor today. 

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