Pre-termination settlement talks cannot normally be used against you in tribunal.
“Pre-termination settlement talks are protected in an ordinary unfair dismissalA legal claim you can bring if your employer dismissed you without a fair reason or without following a fair process. You normally need two years of continuous employment to qualify, though some dismi... claim, but the shield does not cover discrimination, whistleblowingMaking a disclosure about wrongdoing in your workplace, such as a health and safety risk, a criminal act, or a miscarriage of justice. If the disclosure qualifies as protected, the law gives you signi..., breach of contractWhen one party to an employment contract fails to comply with one of its terms without a lawful reason. Your employer breaching a significant term of your contract can entitle you to resign and claim ..., or improper pressure.”
Pre-termination settlement conversations are protected from use in ordinary unfair dismissal proceedings under section 111A of the Employment Rights Act 1996The primary piece of legislation setting out employees rights in the UK, including the right not to be unfairly dismissed, the right to a written statement of employment particulars, and rights relati..., but the protection does not cover breach of contract, discrimination, whistleblowing, or automatic unfair dismissalA dismissal that's automatically treated as unfair, regardless of how long you've worked somewhere. This applies to reasons like whistleblowing, asserting a statutory right, health and safety, or preg... claims.
- If you also have a breach of contract, discrimination, or whistleblowing claim, what was said in a 'protected conversation' may still be usable against your employer in those claims, even though it is shielded in an ordinary unfair dismissal claim.
- If your employer behaved improperly during a protected conversationA conversation between an employer and employee about ending employment by mutual agreement, protected under section 111A of the Employment Rights Act 1996. The protection means the conversation canno..., for example through undue pressure or threats, the protection falls away and what happened can be used in evidence.
- Take advice before engaging in a protected conversation so you understand what it covers and what claims you may have that fall outside it.
The situation
Section 111A of the Employment Rights Act 1996 introduced a separate statutory protection for pre-termination negotiations: conversations between employer and employee about ending employment on agreed terms, known as protected conversations. The question in this case was how that protection works alongside the common law without prejudiceA legal principle that allows parties to have settlement discussions without those discussions being used against them later in tribunal proceedings. It only applies where there is a genuine dispute a... rule, and what is protected under section 111A.
What the tribunal found
The Employment Appeal Tribunal held that the section 111A protection applies to any offer made or discussions held before termination with a view to reaching a settlement agreementA legally binding contract between you and your employer that settles any claims you might have in return for an agreed payment. You must take independent legal advice before signing one, and your emp..., in a situation where there is no existing dispute. Unlike the common law without prejudice rule, section 111A does not require a dispute to be in existence at the time of the communication. It applies to pre-emptive settlement conversations, including the initial approach.
The tribunal also confirmed that section 111A protection applies to the fact of the conversation and its contents in ordinary unfair dismissal proceedings. But the protection is narrow. It does not extend to breach of contract claims, discrimination claims, whistleblowing claims, or other statutory rights beyond ordinary unfair dismissal. In this case, the tribunal specifically held that section 111A did not apply to the employee's breach of contract claim.
Faithorn Farrell Timms LLP v Bailey | [2016] UKEAT/0025/16/RN | Employment Appeal Tribunal | 28 June 2016