Pre-termination negotiations - Be wary of S.111A ERA 96!
Friday 25th October 2013
Employment law specialist James Bellamy comments on pre-termination procedures.
In order for employers to be able to have “off the record” discussions with employees it used to be the case that this could only be done when there was an existing dispute between the employee and the company.
The government has extended this to make it easier for employers to have pre-termination discussions when there is no existing dispute (for ordinary unfair dismissals only). However S.111A of the Employment Rights Act 1996 says that if there is evidence of “improper behaviour” by the employer then these discussions will become admissible in any subsequent claim by the employee.
Unfortunately we do not yet know what will constitute improper behaviour and so extreme care should be taken if you propose to have an off the record conversation. There is guidance in the ACAS Code of Practice on settlement agreements but ultimately it will be left for tribunal judges to determine.
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