This article examines the first appellate judgment on ‘protected conversations’ under s111A Employment Rights Act 1996.

In the first appellate judgment on ‘protected conversations’ under s111A Employment Rights Act 1996, the Employment Appeal Tribunal (EAT) has decided that both the existence and the content of such conversations cannot be admitted in evidence before the employment tribunal.

Faithorn Farrell Timms LLP v Bailey, EAT

Facts

The employee in this case initiated settlement discussions after her employer decided that she could not continue to work part-time in her secretarial role. These discussions did not result in any settlement. Following an exchange of correspondence between Mrs B’s solicitor (marked ‘without prejudice’) and her employer (not marked ‘without prejudice’), Mrs B resigned and issued tribunal proceedings claiming constructive dismissal and sex discrimination. Her particulars of claim made reference to the settlement discussions and the without prejudice correspondence.

As a preliminary issue, the employment tribunal considered the admissibility of evidence in relation to the pre-termination negotiations and without prejudice correspondence. The tribunal concluded that (1) s111A applies to claims for unfair dismissal only and this case included a claim of discrimination, and (2) the restriction only applies to the details of any offer made during the discussions, not the fact any such discussions had taken place. The evidence was therefore admissible.

EAT decision

The EAT disagreed, holding that s111A covers not just the content of the pre-termination discussion and any offers made, but extends to the very fact that the discussions have taken place. It also applies to an employer’s related internal discussions, such as between managers and HR staff. However, such evidence would only be inadmissible in relation to the unfair dismissal claim; the evidence could be admitted in relation to the claim for sex discrimination.

The EAT further held that, in contrast to the rules relating to ‘without prejudice’ correspondence or discussions, evidence of pre-termination settlement discussions held under the provisions of s111A could not be rendered admissible even if the parties agreed.

Consequences

This decision helps to clarify the scope of ‘protected conversations’ under s111A and the extent to which evidence of those discussions are rendered inadmissible. However, it remains to be seen how a tribunal will deal with the practical difficulties of hearing a case where both unfair dismissal and discrimination are being alleged and evidence of the protected conversation is only inadmissible in relation to the unfair dismissal claim.

The content of this article is for general information only. For further information regarding pre-termination discussions, please contact a member of Birketts’ Employment Team. Law covered as at July 2016.