Since July 2013 evidence of pre-termination negotiations in ordinary unfair dismissal cases has been inadmissible, s.111A Employment Rights Act 1996. This protection was introduced by the Enterprise and Regulatory Reform Act 2013 to enable employers to hold termination discussions before commencing a disciplinary or performance management process. It is distinct from the old common law regime of having Without Prejudice discussions.
The EAT in Faithorn Farrell Timms v Bailey has held as follows:
(1) the inadmissibility applies to the fact of negotiations as well as the content. In WP negotiations the fact but not the content may be admissible;
(2) the inadmissibility also covers internal discussions between managers and HR. This is useful if you are an HR consultant without legal professional privilege attaching to your correspondence but you may still be caught by a data subject access request under the Data Protection Act 1998 so be wary;
(3) the inadmissibility cannot be waived even by agreement so the discussions can never go before a court or tribunal. The WP rule can be waived and sometimes is, even inadvertently;
(4) the exception for improper behaviour is wider than the WP protection of “unambiguous impropriety”, which is notoriously hard to invoke.
Points to note:
- protected discussions can be used earlier than WP which can only be used where there is a “live” dispute. This is an area that catches out many employers. For example, you cannot take an employee into a meeting they know nothing about and tell them you are speaking without prejudice and asking them to leave. There is no protection if the employee is not aware there is a dispute. This kind of ambush is very dangerous!
- protected conversations cannot be used in circumstances where automatically unfair dismissal might apply (for example during the protected period for a pregnant employee).
- protected conversations cannot be used where there is any suggestion of discrimination.