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When can off the record discussions be used in evidence?

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Section 111A of the Employment Rights Act 1996 enables “pre-termination negotiations” to take place between an employer and employee to facilitate discussions. Discussions of this sort, also known as “protected conversations” or “PTNs”, are inadmissible in any later unfair dismissal proceedings. However, there are exceptions to this protection, including in relation to automatic unfair dismissal cases (such as whistleblowing, among others) and discrimination claims or where there has been “improper behaviour”. Where an exception applies the discussions are not protected and are fully disclosable.

This case highlights some of the issues that arise where an employee argues the protection is not engaged.

Recent case

In the case of Harrison v Aryman Limited UKEAT/0085/19/JOJ the employer wrote to Ms Harrison proposing that her employment be terminated on the basis of a settlement agreement. Ms Harrison argued this was a reaction to the news that she was pregnant. She also argued there had been a history of detrimental treatment for pregnancy or maternity related reasons and that she resigned in response to the letter.

Ms Harrison brought claims for unfair constructive dismissal as well as sex, pregnancy and maternity discrimination. The employer defended the claims on their merits as well as arguing (among other things) that Ms Harrison could not rely on the letter because it was a protected conversation under s.111A and therefore inadmissible. In response, Ms Harrison argued that the letter was not a genuine attempt to negotiate so (she argued) section 111A was not engaged at all. She argued that the exemptions applied and that the writing of the letter was itself “improper behaviour”.

At a preliminary hearing the Tribunal initially held that s.111A was applicable in respect of the unfair dismissal claim but not the discrimination claims.

Ms Harrison appealed. The Employment Appeal Tribunal (EAT) upheld her appeal. It determined that the Tribunal had not considered whether the exceptions applied. In this particular case there had been an express assertion that the sending of the letter was an act of discrimination and also “improper behaviour”. It was incumbent on the Tribunal to clarify the issues raised and to address them. It had not carried out this exercise and the case was therefore returned to the Tribunal for re-consideration.

Impact for employers

Protected conversations are still relatively new as a concept and we can expect employees to continue to test the boundaries of admissibility. Employers will always be wise to ensure care with the content of discussions, to mitigate the impact should they find these become unexpectedly admissible in proceedings. This case demonstrates that pre-cautions should be taken one step further, requiring employers to think carefully before issuing an offer at all.