Court Rules Admissibility/Settlement Negotiations

12th July 2016
Court Rules Admissibility/Settlement Negotiations image

Court Rules/ Admissibility/Settlement Negotiations

Introduction

The Employment Appeal Tribunal (“the EAT”) has given its first judgment dealing with the admissibility of pre-termination negotiations/protected conversations in employment law.

Obviously from time to time an employer may wish to commence negotiations with an employee (or vice versa) to settle a dispute or to agree the terms of the employee’s exit.  The starting point is that evidence of any such negotiations is admissible in any subsequent litigation/tribunal proceedings.

There are however two possible ways in which the confidentiality of the negotiations can be protected.

The first possible way is under the common law without prejudice rule.  Provided the parties are already in dispute under the without prejudice rule communications are inadmissible as evidence and cannot be made the subject of a disclosure order.   However there does need to be an existing dispute in order for this rule to apply and therefore it often does not apply in employment situations when perhaps an employer is seeking to terminate the employment of an employee before any dispute has arisen.

The second way is under section 111A of the Employment Rights Act 1996.  With section 111A there does not need to be an existing dispute in order for the rule protecting the confidentiality of pre-termination negotiations to apply.  It applies to any offer made or discussions held before termination of employment, with a view to the employment being terminated on terms agreed between the employer and the employee.  However the rule in section 111A only applies to ordinary unfair dismissal claims, whilst the without prejudice rule applies to all types of litigation.  For example the rule under section 111A does not apply to discrimination claims.

The judgment in the EAT case of Faithorn Farrell Timms LLP v Bailey

The judgment in this case is important since it is the first appellate judgment on the scope of section

111A.  The EAT held as follows:-

  • The existence of another claim, e.g. a discrimination claim, does not render admissible for all purposes evidence otherwise inadmissible in an unfair dismissal claim under section 111A. In such circumstances the tribunal would allow the evidence to be admitted for one claim, i.e. the discrimination claim, but still treat the evidence as inadmissible for the unfair dismissal claim.
  • Section 111A not only applies to the content of any offers made or discussions held, it also renders inadmissible the fact that there has been discussions (and not just the content of the same).
  • Section 111A renders inadmissible not simply the discussions between the employer and the employee but also discussions within the employer, such as between different managers or between a manager and a HR adviser. The EAT had noted that it is common for discussions to be reported back to higher management or HR and it would run counter to the purpose of section 111A if evidence of those reports was admissible.
  • Since section 111A renders evidence inadmissible, it is then not possible for the parties to agree (either expressly or implicitly) to admit it. In essence the privilege attached by section 111A cannot be waived by the parties either intentionally or unintentionally.
Conclusion

Our head of employment law, Mr Daven Naghen, has commented don the case as follows:-

“I think the most useful point to note from this judgment is that not only are the discussions between the employer and employee in unfair dismissal cases protected by the provisions of section 111A, but also the relevant conversations between different managers or say between a manager and a HR adviser.  This is good for common sense, since I would usually expect such pre-termination negotiations to be the subject of discussions between managers of a business as well as obviously between the business and the employee.  This will give employers some comfort to know that such internal discussions are likely to be protected by the rule under section 111A.”

If you want any advice or guidance on pre-termination negotiations, either as an employer or an employee, then please contact Dav on 01775 722261 or email daven.naghen@maplessolicitors.com or visit our offices or make an appointment at our offices at 23 New Road, Spalding, Lincolnshire, PE11 1DH.


Cancer Research UK Free Will Service image

Cancer Research UK Free Will Service

Maples Solicitors are pleased and proud to announce that it is working in partnership with Cancer Research UK to offer their Free Will Service for the over 55’s.

The vast majority of people have been affected in some way by cancer and we wish to support Cancer Research UK in its life saving work by offering their Free Will Service.

Over a third of Cancer Research UK’s research is funded by gifts in Wills and we believe we can play a vital role in helping in the fight against cancer. Writing your will for free using the scheme could help beat cancer sooner.

Please contact a member of our Wills and Probate Department:-
Jamie Dobbs- jamie.dobbs@maplessolicitors.com
Jane Mawer- jane.mawer@maplessolicitors.com
Faye Blair- faye.blair@maplessolcitors.com

Or telephone the office 01775 722261 and ask to speak with one of the team

Read More

Testimonials

Gemma Mayer LLB

"I would highly recommend Maples Solicitors, especially Gemma Mayer, for any conveyancing work. The level of support and professionalism was excellent at all times. I also felt if I needed to ask or clarify anything that it was not an issue. Buying and selling a house is stressful enough, but Gemma helped me through it step by step."

Anita Toal LLB BA

"I think you are brilliant. You can use my comments above. You are efficient, friendly and quite clearly very good at what you do. Mainly you don’t leave people hanging around too long for." "So easy to talk to her and she understood what I wanted. She put me at ease and I cant thank her enough"

James Turner BA

James Turner was extremely helpful with our buying process. Everything went smoothly. We are very happy with the level of professionalism demonstrated by the office. Highly recommended solicitors. Will definitely do business with them again.

Daven Naghen LLB

"Daven provided an excellent service, from attending the first interview with me to the final court appearance. He filled me full of confidence that he would defend me to which he did and come out with an excellent outcome in view of my position that I had put myself in."

Faye Blair LLB

Faye was excellent, sensitive and acted very well to the time constraints we faced. Great service and dealt with compassion at such sad times made the process less painful very professional.

Jamie Dobbs ACILEx

Over the last forty years I have cause to deal with many law firms both in a personal and professional capacity, including some ‘top’ London Companies. In all of those dealings I have never found anyone as proactive and so willing to offer help and advice as Jamie Dobbs. During the last two years Jamie guided my parents through the completion of Lasting Powers of Attorney. Helped myself with the use of the LPA and recently dealing with Probate and Estate Administration following their death.

Mike Pepper MA

Mike Pepper gave us excellent advice. He was always most helpful and accommodating giving lucid explanations every step of the way. Thank you Mike.

Donna Sandison FCILEx

Donna has been helpful and professional every step of the way during the process. Always on hand to answer any queries and totally professional and friendly at all times.