In the case of Gallagher v McKinnon’s Auto and Tyres Limited the Employment Appeal Tribunal needed to decide whether the Employment Tribunal at a preliminary hearing had been correct in deciding that the pre-termination discussions, purported to be a ‘Protected Conversation’ in accordance with s.111A of the Employment Rights Act 1996, were inadmissible in the Claimant’s claim for unfair dismissal.
Briefly, the Claimant, Mr Gallagher, commenced employment with the Respondent, McKinnon’s Auto and Tyres Limited, in October 2017. The Claimant went off sick from work for a few weeks from June 2022. On 1 August 2022 the Claimant was asked to attend a return-to-work meeting but during this meeting an ‘off the record’ conversation was initiated by the Respondent who decided that they no longer required him as a branch manager as the directors had been able to cover his absence. He was offered £10,000 in settlement and was informed it was more than he would be entitled to under the statutory redundancy pay regime. The Claimant was asked to sign a ‘compromise agreement’ (settlement agreement) and given 48 hours to consider the offer otherwise the Respondent would commence a redundancy exercise.
The Claimant didn’t accept the proposal, was dismissed by reason of redundancy and presented a claim to the Employment Tribunal on 21 November 2022 for unfair dismissal which mentioned the pre-termination offer.
The Respondent defended the claim and submitted that the ‘off-the-record’ conversation was protected by virtue of s.111A ERA and was not a without prejudice conversation (see our explanations for what without prejudice means and what a protected conversation means). The Employment Tribunal therefore needed to decide whether s.111A applied and whether there had been any improper behaviour which rendered the discussions admissible. The Employment Tribunal decided that the pre-termination negotiations were within the meaning of s.111A and that there had been no improper behaviour.
The Claimant appealed arguing that it was perverse for the ET to conclude there had been no improper behaviour. The Claimant’s argument was that he had been threatened with redundancy if he refused the offer, that 48 hours to decide put him under pressure (and was in contravention of the ACAS guidance) and that the meeting had been mispresented as he had attended a meeting expecting to return to work; not to be made an offer to leave.
The EAT rejected the appeal. It concluded that the ET had considered the ACAS guidance and were clear that whilst the Claimant was informed his role would be made redundant if he did not sign the settlement agreement, it was not clear that he would be made redundant just merely that a redundancy process would commence.
The specific facts of this case are important. There may be occasions where 48 hours to decide or notification of dismissal (especially in disciplinary proceedings) would be deemed to be improper behaviour. Further, s.111A protection only applies to ordinary unfair dismissal.
If you are an employer who wants to initiate an ‘off-the-record’ meeting or are an employee who has been offered a settlement agreement please contact us at info@justemployment.com or on 01483 303636 to see how we can help you.
