A new Section 111A was inserted into the Employment Rights Act 1996 in July 2013 and this new provision introduced the concept of protected conversations. Section 111A makes evidence of pre-termination negotiations/protected conversations inadmissible in any subsequent unfair dismissal proceedings. Section 111A is however subject to certain exceptions for example it does not apply to claims other than unfair dismissal. Furthermore, evidence of negotiations will still be admissible where a claimant alleges automatically unfair dismissal. Where a Tribunal considers anything said or done to be improper, or connected with improper behaviour, Section 111A will only apply to the extent that the Tribunal considers just.
In this case, the Claimant, Ms Harrison, received a letter from her employer citing performance issues and introducing the idea of termination of her employment using a Settlement Agreement. Negotiations followed however nothing was agreed. The Claimant ended up resigning from her employment around a year later and she submitted a claim for constructive unfair dismissal, which she said was discriminatory because she believed that the suggestion of termination of her employment had been prompted by her announcement of pregnancy.
The Respondent argued that the letter citing performance issues and suggesting termination of employment could not be relied on in the unfair dismissal claim because it was protected by virtue of Section 111A Employment Rights Act 1996.
The EAT decided that on reading the particulars of claim, it was clear that the Claimant was asserting a claim for automatically unfair dismissal and therefore Section 111A did not apply. The EAT also found that there was also at least the basis of a further assertion of “improper behaviour” of the Respondent. The EAT found that in all the circumstances of the case, it would be incumbent on the Judge proactively to seek clarification as to the precise live issues in relation to Section 111A Employment Rights Act 1996.
The case was therefore remitted to the Tribunal for further consideration of Section 111A.
This case highlights the importance of the rules surrounding protected conversations and the risk that Employment Judges will allow evidence of such conversations where one or more of the exceptions in Section 111A are alleged to apply.