Under section 111A of the Employment Rights Act 1996, evidence of pre-termination negotiations is inadmissible in unfair dismissal claims (although not in relation to automatic unfair dismissal or discrimination claims).
Faithorn Farrell Timms LLP v Bailey involved an overlap between communications that were arguably inadmissible under section 111A and others that could potentially attract the general "without prejudice" privilege.
Discussions were held at the end of 2014 about changes to the claimant's part-time working arrangement and she initiated discussions about a settlement agreement on 10 December. By 7 January 2015 it was accepted that there was a dispute between the parties, with the result that without prejudice communications between them after that date would in principle be inadmissible.
The issue for the tribunal was whether various communications that had taken place between the parties, and internal discussions within the employer, were admissible, or whether the employer could rely on s111A and/or the general without prejudice privilege to prevent the employee relying on the documents.
The EAT confirmed that:
- Section 111A is not restricted to the content of the discussions; it extends to the fact of those discussions as well. Evidence of both the content and fact of discussions is therefore inadmissible in relation to an unfair dismissal claim.
- S111A is also not confined simply to evidence of negotiations from those directly involved; it covers, for example, reports on discussions by a manager to a Board or HR. The focus has to be on the subject matter of the evidence – is it evidence of an offer or discussions with a view to termination on terms agreed between employer and employee?
- The parties cannot agree to admit evidence that section 111A says is inadmissible – the concept of waiver of privilege does not apply. Section 111A and without prejudice privilege are different (and not just on the waiver point – the concept of "improper behaviour", which stops or reduces inadmissibility, is wider than the "unambiguous impropriety" exception for privilege).