Chris Hadrill, the partner in the employment team at Redmans, analyses the effect of section 111A of the Employment Rights Act 1996
The wording of section 111A Employment Rights Act 1996
(1)Evidence of pre-termination negotiations is inadmissible in any proceedings on a complaint under section 111.
This is subject to subsections (3) to (5).
(2)In subsection (1) “ pre-termination negotiations ” means any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee.
(3)Subsection (1) does not apply where, according to the complainant’s case, the circumstances are such that a provision (whenever made) contained in, or made under, this or any other Act requires the complainant to be regarded for the purposes of this Part as unfairly dismissed.
(4)In relation to anything said or done which in the tribunal’s opinion was improper, or was connected with improper behaviour, subsection (1) applies only to the extent that the tribunal considers just.
(5)Subsection (1) does not affect the admissibility, on any question as to costs or expenses, of evidence relating to an offer made on the basis that the right to refer to it on any such question is reserved.
The effect of section 111A Employment Rights Act 1996
Under section 111A(1) of the Employment Rights Act 1996 (“ERA 1996”) “pre-termination negotiations” may be protected from admissibility in unfair dismissal proceedings unless there has been “improper behaviour”. Unlike the common law “without prejudice rule” (see our article on what without prejudice means), there is no need for the parties to be in dispute in order for the section 111A rule to apply.
Protection from admissibility includes the very fact that pre-termination negotiations have taken place, not just the details of those negotiations
What are pre-termination negotiations?
The term “pre-termination negotiations” means “any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee” (section 111A(2), ERA 1996).
In the case of de Crespigny v Information Security Forum Ltd ET/2300316/2014 (see our analysis of this case here) the Employment Tribunal held that discussions about the future of a CEO’s employment were admissible in his claim for unfair dismissal as there was no settlement offer made to the employee, nor were there any negotiations with a view to his employment being terminated on agreed terms; in the case of Faithorn Farrell Timms LLP v Bailey  IRLR 839 the Employment Appeal Tribunal deliberated on the same point (in this case the employee argued that she had opened the pre-termination discussions, was the only who had made an offer of settlement, and that her employer had not made any genuine attempt to resolve the dispute) (see our analysis of this case) but decided that it could not determine this issue and remitted the case back to the Employment Tribunal
In Basra v BJSS Ltd  UKEAT 0090_17_1912 the Employment Appeal Tribunal held that the exclusion of pre-termination evidence only applies to negotiations taking place before the employment has terminated and so cannot be invoked until the effective date of termination has been determined (see our analysis of this case).
When are pre-termination negotiations admissible?
Pre-termination discussions are admissible, broadly in two circumstances:
- “on any question as to costs or expenses, of evidence relating to an offer made on the basis that the right to refer to it on any such question is reserved” (section 111A(5)); and/or
- Where the claim being made is not one of unfair dismissal (i.e. if a claim is for breach of contract, unlawful detriment, discrimination, and/or automatic unfair dismissal (among others)); and/or
- Where there was any improper behaviour
In these circumstances the fact and content of any offers or discussions may be referred to in proceedings unless they are also covered by the “without prejudice rule”.
The section 111A rule does, in certain circumstances, give employers enhanced protection and allows them to have ‘full and frank’ conversations with their employees. However, the protection that it allows to these conversations can sometimes be artificial in nature – for example: in a case where an employee was alleging that they had been unfairly dismissed and, in addition, that their dismissal was discriminatory the fact and/or content of any pre-termination negotiations would be inadmissible for the purposes of the unfair dismissal claim but not inadmissible for the purposes of the discrimination claim.