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When can protected conversations be referred to in a Tribunal?

Solicitor, Jordan Hassan

The Employment Appeal Tribunal in the case of Harrison v Aryman Ltd has considered the circumstances in which “protected conversations” can be referred to in an Employment Tribunal.

Background

The Claimant was employed by Aryman Ltd (“the Respondent”). After informing her manager of her pregnancy, she received a letter headed ‘confidential settlement proposal’, which sought to terminate her employment. The Claimant resigned in response to the letter alleging that it was a reaction to the news that she was pregnant.

The Claimant submitted a claim for unfair constructive dismissal and discrimination on the grounds of sex and pregnancy and sought to refer to the settlement proposal letter as evidence.

The Law

Section 111A of the Employment Rights Act (“ERA”) 1996 sets out the general principle of “protected conversations”. Under section 111A, employers are able to negotiate with employees about termination of employment which cannot later be referred to in an Employment Tribunal in circumstances where a Claimant is claiming that they have been unfairly dismissed. This protection is separate from the ‘without prejudice’ rule, as it can be relied upon even where there is no existing dispute between an employer and employee.

However, there are a number of exceptions to section 111A.  If a Claimant alleges that they have been dismissed for a reason that would make their dismissal automatically unfair, for example if they were dismissed because they were pregnant, then any settlement negotiations they have been a part of may potentially be referred to in an Employment Tribunal. This may also be the case where there is evidence of ‘improper behaviour’ by an employer, for example if they have put an employee under undue pressure to accept a settlement offer.

Decision

The Employment Tribunal found at a preliminary hearing that the Claimant could not refer to the letter as it was protected under section 111A ERA 1996. The Claimant appealed.

The Employment Appeal Tribunal (“EAT”) upheld the appeal. The EAT decided that the Tribunal should have considered whether any of the exceptions to section 111A applied. The EAT concluded that even though the Claimant had not expressly referred to it, there was evidence of an automatically unfair dismissal on the basis that the Claimant was alleging pregnancy discrimination.  Also, as the Claimant had alleged improper behaviour by her employer, the Tribunal should have considered this and made a finding as to whether there was improper conduct.

The case was remitted to the Tribunal for re-consideration.

Comment

This decision highlights that employers should be careful when having “protected conversations” with employees as it is possible that they could be admissible in future proceedings. Employers should always have consideration to the potential claims the employee may have before entering into such discussions and ensure that there is nothing said or done during the negotiations that could amount to improper behaviour.

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