You may or may not be aware that usually, discussions held pre termination of employment are usually not allowed to be referred to if there is any resulting employment tribunal claim. These conversations are considered ‘inadmissible’ as evidence.
The Employment Appeal Tribunal (EAT) supported this position in the case of Gallagher v McKinnon’s Auto and Tyres where it held that the confidentiality of the pre-termination negotiations was guaranteed under section 111A of the Employment Rights Act (protected conversation). It also confirmed that there was no improper behaviour on the part of the employer that called that confidentiality into question. The EAT also supported the ET in that it correctly found that an offer made in a verbal conversation, giving the Claimant 48 hours to consider it, did not place him under undue pressure.
It was further agreed that the Claimant’s assertion that if he did not accept the offer, he would be dismissed, was not accepted. The Claimant was employed by the Respondent as a Branch Manager. He was on sick leave during June and July 2022 and, having not replaced him, the Respondent determined it could function without this role.
The Claimant was invited to attend a meeting in August 2022 to discuss his return to work. The Respondent wanted to discuss his exit at this meeting and offered an enhanced redundancy payment. It was discussed at this meeting that if the Claimant accepted the offer, the parties would sign a settlement agreement. If the Claimant chose not to accept, a redundancy consultation process would follow. The Claimant was given 48 hours to consider the offer. A breakdown of the offer was provided. The Claimant did not accept the offer within the 48-hour window and a consultation meeting to discuss his potential redundancy was scheduled. The Claimant was thereafter dismissed on the grounds of redundancy.
The Claimant pursued an unfair dismissal claim against the Respondent and sought to rely on the discussions around the settlement offer made. At an initial preliminary hearing the Tribunal found that these discussions were ‘pre-termination negotiations’ and therefore inadmissible in any complaint of ‘ordinary’ unfair dismissal.
The Tribunal specifically rejected the Claimant’s submission that there had been any impropriety on the part of the Respondent. The Claimant argued that he was put under undue pressure and it was put to him that if he did not accept the offer, in the 48 hour timeframe, he would be dismissed. He also argued the meeting in August 2022 was called under false pretences.
The EAT dismissed the appeal and dismissed all of the Claimant’s arguments about the Respondent’s alleged ‘improper behaviour.’ The EAT also considered that in a redundancy situation there was no initial investigation required and therefore pre-confirmation that a role may be redundant does not automatically mean that a person who performed that role will be dismissed.
The meeting in August 2022 was also found to be legitimate and there was no misrepresentation of the meeting. The change in scope of the meeting did not give rise to any impropriety. The meeting was conducted calmly, and the Claimant was given time to discuss the offer made. The initial shock of attending the meeting was alleviated by the approach taken by the Respondent.
The 48 hour window to accept the offer was also not considered to be unreasonable. It was only a verbal offer and, had the offer been accepted, the negotiations would have continued to conclusion. At some point, thereafter, a settlement agreement would have been offered. He would have been given the requisite time to consider these and take independent legal advice.
In conclusion, the pre-termination negotiations were inadmissible, and the appeal was dismissed.
This blog was written by Elizabeth McGlone, Partner at didlaw.
