Protected conversations, or "pre-termination negotiations" as they are referred to in law, were introduced in 2013 to give employers and employees a chance to explore an agreed termination of employment without evidence of those discussions being used in a later tribunal claim. However, there are various exceptions to the normal principle of inadmissibility, notably in relation to automatic unfair dismissal and discrimination claims, or if there has been improper behaviour. In Harrison v Aryman Ltd the EAT had to explore how far a tribunal has to go in considering whether exceptions to the general principle apply.
The employee resigned in July 2017, claiming unfair constructive dismissal and sex and pregnancy and maternity discrimination. Her claim referred specifically to a letter in August 2016, headed a "confidential settlement proposal", which she said indicated an intention to bring her employment to an end. The employer argued that she was not entitled to rely on the letter because it was a protected conversation and as such inadmissible. At a preliminary hearing the tribunal agreed and found that the employee could not rely on the letter as far as her unfair dismissal claim was concerned, although it was admissible in relation to the discrimination claim. The employee appealed.
The EAT upheld the appeal. By the time of the preliminary hearing the employee accepted that the letter amounted to a protected conversation but that was not the end of the matter. The tribunal had not gone on to consider whether either of the exceptions to the normal principle of inadmissibility applied. It should have done so, even though the employee had not expressly raised the points in argument. On the facts of the case, the employee was effectively contending that she had been automatically unfairly dismissed because of pregnancy or maternity even though she had not expressly pleaded her claim in that way. She had also referred to "improper behaviour" by the employer. Those factors meant that the employment judge should have engaged proactively with the exceptions to the normal inadmissibility principle and decided whether either (or both) exception applied. Failing to do so was an error of law, so the issue returned to the tribunal for further consideration.