Limits of protected conversations

Harrison v Aryman (Employment Appeal Tribunal)

In a reminder to employers as to the limits of "protected conversations" under s.111A Employment Rights Act 1996 ("ERA"), the EAT has provided guidance on how Tribunals should approach limits to the inadmissibility of "protected conversations" in circumstances where: (i) claims other than ordinary unfair dismissal are made; (ii) claimants allege "impropriety" on the part of their employer.

In this case, the Claimant resigned claiming constructive, automatically unfair dismissal as well as sex and pregnancy or maternity discrimination. In her claim, she referred to a letter from her employer headed "confidential settlement proposal" which offered a mutual agreement as to the termination of her employment on agreed terms. Whilst the Respondent argued that this material should not be admissible as it formed part of pre-termination negotiations, a.k.a. a "protected conversation" under s.111A ERA, her position was that the statutory exceptions to this protection applied, namely that: (i) her claim related to an automatically unfair dismissal; and (ii) the employer had acted "improperly" when making the offer.

The EAT's judgment provides guidance on the extent to which tribunals will take steps to consider the limits to "protected conversations" when this issue is raised by a Claimant. In particular, it noted that:

• where a Claimant formulates a claim alleging that they have been automatically unfairly dismissed, all relevant pre-termination negotiations will be admissible without the Tribunal having to make a specific finding on that issue; and

• where employer "impropriety" is alleged, a Tribunal should hear specific evidence on that point and decide to what extent it would be "just" to admit evidence of pre-termination negotiations.

This decision is a useful reminder that employers may not use "protected conversations" as a blanket measure to apply in all cases; the extent of protection offered will depend on the relevant individual's prospective claims and the processes which are followed. Whilst the scope of "improper" conduct remains somewhat ambiguous, any steps which are objectively unreasonable such as threats against the employee, attempts to "gag" unlawful conduct and even the setting of tight deadlines are theoretically capable of falling within this exception. Employers should therefore take advice on a case by case basis.