Pre-termination negotiations: admissibility and the without prejudice rule (News, 1 July 2016)

Table of contents

• Impact of this judgment
• Background law
• The alleged facts and decisions of the employment tribunal
• The decision of the EAT

Article summary

In the first appellate judgment dealing with the admissibility of pre-termination negotiations (‘protected conversations’) under section 111A of the Employment Rights Act 1996 (ERA 1996), the EAT has held that: (1) evidence of pre-termination settlement negotiations may be admissible in respect of one claim (eg discrimination) even if that evidence is rendered inadmissible by virtue of section 111A of the ERA 1996 for an ordinary unfair dismissal claim, (2) the fact that pre-termination settlement negotiations have taken place is inadmissible under section 111A as well as their content, (3) not only are the relevant discussions between employer and employee inadmissible under section 111A but so are discussions within the employer, for example between different managers or a manager and a Human Resources adviser; and (4) privilege under section 111A cannot be waived, expressly or implicitly (unlike ‘without prejudice’ privilege which can be). EAT: Faithorn, Farrell, Timms LLP v Bailey