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Improper behaviour can lead to section 111A negotiations being admissible in Court

04 November 2019

In the case of Harrison v Aryman Limited, the Employment Appeal Tribunal (“the EAT”) has recently decided that a pre-termination negotiation letter that was sent from an employer to an employee could potentially be admissible in evidence.

Ms Harrison (“the Claimant”) issued a claim against the Respondent (Aryman Limited) for a number of claims including unfair constructive dismissal. The Particulars of Claim set out that the Claimant had resigned from her job in light of the Respondent’s behaviour to her since informing the Respondent that she was pregnant. The Claimant also referred to a letter dated 15 August 2016 which suggested that her employment terminate by way of a Settlement Agreement. The Claimant asserted that the letter was a reaction to the news that she was pregnant and that it was the last straw after a series of incidents over the previous years relating to her status as a pregnant woman.

The Respondent submitted a Response defending the claim. The Respondent asserted that the letter dated 15 August 2016 could not be relied upon as it was rendered inadmissible due to Section 111A of the Employment Rights Act 1996 (“Section 111A”).

The Claimant later submitted amended Particulars of Claim asserting that the August 2016 letter was not a genuine attempt by the Respondent to negotiate and so the section was not engaged at all. Rather, the other exceptions relating to the inadmissibility of evidence applied with the writing of the letter being deemed as improper behaviour and that she had been automatically dismissed due to her pregnancy.

A preliminary hearing took place in the Employment Tribunal (“the ET”). The ET Judge agreed with the Respondent that Section 111A was applicable and held that the Claimant could not rely on the August 2016 letter in respect of her unfair dismissal claim.

The Claimant appealed to the EAT citing that the ET Judge had failed to address whether the other sections relating to the principle of inadmissibility applied given that she had raised allegations of improper behaviour.

The appeal was successful with His Honourable Judge Auerbach ruling that the other exceptions to the normal principle of inadmissibility ‘go hand in hand because the Claimant was saying that the letter was written as a reaction to the news she was pregnant’ and was therefore a fundamental breach of the implied terms of her contract of employment. The EAT has therefore remitted the case back to the ET for further consideration of the section 111A issues and it could well be decided that a negotiation letter can be admissible in evidence.

Comment

This is a very important reminder for employers conducting pre-termination negotiations (sometimes called protected conversations) to remember that if any improper behaviour occurs, it can render the negotiation process admissible in proceedings. Evidence could then be adduced showing or identifying the improper behaviour making it harder to defend an unfair dismissal claim. Employers should also be reminded that Section 111A discussions only protect employers in relation to potential future claims of ordinary unfair dismissal.

By Emily Calfe

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