The confidentiality of pre-termination negotiations

In Gallagher v McKinnon’s Auto and Tyres Ltd, [2024] EAT 174, the EAT has held that an employment tribunal was entitled to find that evidence of discussions conducted with a view to ending the employment relationship on agreed terms was inadmissible in the Claimant’s unfair dismissal claim. In particular, the confidentiality of pre-termination negotiations is guaranteed under S.111A of the Employment Rights Act 1996.

At a preliminary hearing, the tribunal below had found that the discussions were ‘pre-termination negotiations’ within the meaning of S.111A of the Employment Rights Act 1996 and ruled that they were therefore inadmissible in any complaint of ‘ordinary’ unfair dismissal. Moreover, the tribunal had specifically rejected the employee’s submission that the impropriety exception in S.111A(4) applied.

The employee appealed to the EAT, arguing that it was perverse for the tribunal to conclude that there was no impropriety for the purposes of S.111A(4) as the options had been presented to him as ‘either accept the terms on offer or we will commence a redundancy consultation’.

The EAT disagreed. It was not improper to explain to the employee that, absent agreement, a formal redundancy consultation would be instigated. Accordingly, there was no perversity in the tribunal’s finding. The EAT also upheld the tribunal’s finding that there was no impropriety in giving the Claimant 48 hours to indicate acceptance of the settlement offer. If the Claimant had accepted the verbal offer, the pre-termination negotiations would have continued and, at some point, he would have been presented with written terms of a settlement agreement to consider. The fact and content of the pre-termination negotiations were therefore properly ruled inadmissible.

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Authors

Daniel Hobbs

Call 1998

Related areas

Employment

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