A tribunal must make findings of fact in regard to improper conduct before disapplying s.111A.
S.111A 'protected conversations' were introduced to help employers approach difficult conversations around the possibility of dismissal. The provision helped to fill a technical gap between correspondence covered by the without prejudice rule (i.e. which covers an active dispute) and the practicalities of approaching an employee to negotiate their termination before a dispute exists. In the latter case, without s.111A, evidence concerning negotiations would be disclosable to a tribunal, with possible detrimental impacts to an employer in regard to its ability to defend a claim for unfair dismissal.
However s.111A has limits. Most employers will know that it specifically does not apply to situations where there is, on the face of it, a claim for automatically unfair dismissal or discrimination. However protection can also be lost where there has been 'improper conduct'. What is 'improper conduct' must be considered by a tribunal and, if such conduct is determined to have occurred, the tribunal can limit the s.111A protection to the extent it considers just.
A recent tribunal decision has clarified what a claimant must do to trigger the potential lifting of s.111A protections for 'improper conduct'.
Case details: Harrison v Aryman Limited
Ms Harrison informed Aryman in 2016 that she was pregnant. Soon afterwards Aryman approached Ms Harrison to outline a number of issues it had with her performance and offered Ms Harrison a settlement agreement. The details of this discussion were documented in a letter (the "2016 evidence").
Negotiations continued for some time but were unsuccessful. Ms Harrison eventually resigned and submitted claims of unfair constructive dismissal and direct discrimination on the grounds of her sex, pregnancy or maternity. Ms Harrison referred to the 2016 evidence as both discriminatory acts in of themselves and as evidence that she had been unfairly constructively dismissed.
Aryman argued the 2016 evidence could not be considered by the tribunal due to s.111A. Ms Harrison countered that s.111A was disapplied in respect of her discrimination claim and because Aryman had shown improper conduct in their actions, because the 2016 evidence itself detailed an act of fundamental breach.
At a preliminary hearing a tribunal judge found that, without a successful constructive dismissal claim, the claims of discrimination would not be just and equitable to consider due to time limitations. The Judge held that s.111A protection did apply to the 2016 evidence, save as to the claims of discrimination.
Ms Harrison appealed these findings. Her constructive dismissal and discrimination claims were both bound up in the 2016 evidence and the decision meant that the 2016 evidence could not be referred to in support of the constructive dismissal claim, without which she could not bring the discrimination claim.
The appeal focussed on whether the tribunal judge had properly considered the point of improper conduct in regard to the s.111A issue.
At appeal, the EAT noted that the improper conduct provisions require a tribunal judge to make a finding on whether improper conduct has occurred and then, if it has, to decide to what extent the s.111A protections are lifted. For the judge to do this the issue must be specifically raised in argument for consideration.
In this respect, the EAT found no evidence that improper conduct in relation to the unfair constructive dismissal claim had been raised. However, the EAT viewed that this point went hand in hand with the wider claim submitted by Ms Harrison that the 2016 evidence arose as a result of her informing Aryman of her pregnancy.
Because of this, the EAT found that the tribunal should have specifically considered the s.111A improper conduct point in respect of the unfair constructive dismissal claim, and remitted the point to tribunal for fresh consideration.
This case highlights an interesting combination of issues orbiting s.111A protection and serves as a useful reminder to consider improper conduct issues when contemplating approaching an employee to negotiate their exit.
Although this case did not specifically deal with what amounted to 'improper conduct' in reference to s.111A, the EAT did note that this is a lower requirement than 'unconscionable impropriety' hurdle needed to lift any 'without prejudice' protection.
There is still no clear guidance in case law as to what amounts to improper behaviour, but the ACAS Code of Practice on Settlement Agreements, a copy of which can be found here, provides examples. The examples include harassment, bullying and intimidation, physical assault or threats to assault, discrimination and putting undue pressure on a party, either by limiting the time to consider the offer or saying that if the offer isn't entered into the employee will be dismissed.
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