The law says that evidence of pre-termination negotiations is inadmissible except in claims of automatically unfair dismissal or improper behaviour. In Harrison v Aryman Ltd, the Employment Appeal Tribunal (EAT) considered the proper approach a tribunal should take when determining when the exceptions applied.
Following her resignation in July 2017, Ms Harrison lodged tribunal proceedings claiming unfair and constructive dismissal as well as discrimination on the grounds of pregnancy and maternity contrary to the Equality Act 2010.
To substantiate her claims, she referred to a letter written by her employer dated 15 August 2016, which she received after telling them that she was pregnant. The letter proposed to terminate her employment on the basis of a settlement agreement. For its part, Aryman Ltd argued that Ms Harrison was prevented from relying on the August 2016 letter because it was a protected conversation and therefore inadmissible.
Following a preliminary hearing in January 2018, Ms Harrison amended her claim, and set out in more detail that her discrimination claim included a claim for automatic unfair dismissal because of pregnancy or maternity and that Aryan Ltd was motivated by “improper behaviour” in sending her the letter.
Section 111A(1) of the Employment Rights Act (ERA) states that “evidence of pre-termination negotiations” is inadmissible in a tribunal claim.
Section 111A(3) states that subsection (1) does not apply if the complainant was unfairly dismissed. The effect of this exception means that pre-termination negotiations are admissible where the complainant has brought a claim of automatically unfair dismissal or discrimination.
Section 111A(4) states that subsection (1) does not apply in relation to anything said or done that was “improper” or connected with “improper behaviour”.
At a second preliminary hearing in April 2018, the tribunal held that section 111A applied and therefore Ms Harrison could not rely on the letter in relation to her unfair dismissal claim, although she could rely on it in relation to her discrimination claim.
She appealed this decision on the basis that the tribunal had failed to engage with the exceptions under section 111A (3) which related to her claim that she had been automatically unfairly dismissed because of sex, pregnancy or maternity; and section 111A (4) which related to her claim that writing the letter amounted to improper behaviour.
The EAT allowed the appeal on the basis that Ms Harrison had provided, in her amended particulars of claim, the factual basis for a claim of automatically unfair dismissal even though it was not expressly set out as a claim under section 99 of the ERA or Regulation 20 of the Maternity and Parental Leave Regulations. She had also asserted that section 111A(3) applied. In addition by asserting that the act of writing the letter amounted to “improper behaviour” there was the basis for a further assertion that section 111A(4) applied. As such, it was an error of law by the tribunal not to consider whether the exceptions applied when determining if section 111A applied.
With regard to section 111A(3), that meant that it should have undertaken a proper consideration of how the case had been put. If it had been presented in those terms (which it had in this case), then the August 2016 letter was admissible. With regard to section 111A(4), however, the tribunal had to make a finding of fact about what behaviour had occurred and whether that amounted to the legal concept of “improper behaviour”. Furthermore, if there was a finding of “improper behaviour” the tribunal was required to consider to what extent it would be just and equitable for the pre-termination negotiations to be admitted as evidence.
In this case, the tribunal took into account that Ms Harrison had amended her claim after the employer asserted that section 111A applied to the letter and without any clarification after the amendments had been made as to what aspects of section 111A remained in issue. It will now be up to the tribunal to determine what behaviour by the employer was improper.