In the case of Mrs D Lingard v Leading Learners Multi Academy Trust ET/2401985/2017 the Employment Tribunal held that giving a 4-day time period for the acceptance of a settlement agreement offer did not constitute ‘improper behaviour’.
The facts in Mrs D Lingard v Leading Learners Multi Academy Trust
Mrs Lingard commenced employment with Leading Learners Multi Academy Trust (“the Trust”) on 1 January 2002, and she was at the times relevant to this case employed as Head Teacher; the Trust is a group of four primary schools in Wigan.
In April 2016 Jonathan Brown was commissioned to undertake an external review of the school; at the end of this review Mr Brown fed back that the school was at the level “requires improvement”.
From 7 November 2016 Mrs Lingard was absent from work with high blood pressure and stress. On 15 November 2016 she undertook an occupational health assessment by telephone, and on 17 November 2016 she was invited to attend a welfare meeting on 30 November 2016.
Mrs Lingard attended the meeting on 30 November 2016 with her trade union representative, Mr Atkins. After this meeting an offer of settlement was made on a “without prejudice” basis by the Trust (via Mr Atkins) of £19,270 (subject to the completion of a settlement agreement); the reason that the offer of settlement was made was that it was not believed that Mrs Lingard would accept responsibility for the poor performance issues that had been raised. On 2 December 2017 Mrs Lingard wrote to Mr Atkins to complain about the without prejudice offer, to assert that she reserved her right to bring certain employment-related claims in the circumstances, and to seek clarification of how the state of affairs had arisen.
On 8 December 2016 Mr Atkins sent Mrs Lingard a further email confirming that a second without prejudice offer had been made of £30,000. Mrs Lingard subsequently dis-instructed Mr Atkins and instructed a law firm to deal with the matter. The offer of £30,000 was subsequently rejected.
Mrs Lingard subsequently resigned from her employment and brought claims in the Employment Tribunal. She relied in her claim form on incidents which had occurred since 30 November 2016; the Trust objected to this, arguing that the incidents since 30 November 2016 should be covered by ‘without prejudice’ protection and was also a ‘protected conversation’ (for the purposes of section 111A Employment Rights Act 1996).
The decision of the Employment Tribunal
The Employment Tribunal held that the following incidents were covered by the without prejudice rule as they related to attempts to settle an existing dispute (and therefore inadmissible for the purposes of the Employment Tribunal claim):
- The rejection of the offers of £19,720 and £30,000
- Correspondence between Mrs Lingard’s solicitor and the Trust’s solicitors
The Employment Tribunal held, further, that the meeting between Mrs Brown and Mr Atkins on 30 November 2016 to discuss the settlement offer of £19,720 was admissible as it constituted “improper behaviour” (and was therefore not covered by the ‘protected conversation’ rule); the further offer of settlement made on 8 December 2016 was covered by the ‘protected conversation’ rule as the 4-day time period given for the acceptance of the offer was not unreasonable (even if the ACAS Code on settlement agreements recommended that, as a general rule, ten calendar days should be given to consider the offer).
Our solicitors’ view on Mrs D Lingard v Leading Learners Multi Academy Trust
Chris Hadrill, partner in the employment department at Redmans, commented on the case: “When negotiating settlement agreements it is important to ensure that any offers made are marked ‘without prejudice’ and ‘subject to contract’ – a failure to do so can have potentially important repercussions if an Employment Tribunal claim is subsequently brought.”
The judgment of the Employment Tribunal in Mrs D Lingard v Leading Learners Multi Academy Trust can be found here.