Section 111A Employment Rights Act 1996

Section 111A Employment Rights Act 1996: What does it say and what does it mean?

Section 111A Employment Rights Act 1996 came into law in 2013. It introduced the pre-termination negotiation, commonly called a protected conversation.

A pre-termination negotiation is a discussion or written communication made (before termination) with a view to an employee’s employment ending on terms to be agreed under a settlement agreement. A pre-termination negotiation is inadmissible in relation to a general unfair dismissal claim but not other claims, such as automatic unfair dismissal or discrimination or breach of contract. A communication is not protected if in the employment tribunal’s opinion, something said or done was improper.

The full wording of section 111A Employment Rights Act:

“111A Confidentiality of negotiations before termination of employment

(1)Evidence of pre-termination negotiations is inadmissible in any proceedings on a complaint under section 111.

This is subject to subsections (3) to (5).

(2)In subsection (1) “ pre-termination negotiations ” means any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee.

(3)Subsection (1) does not apply where, according to the complainant’s case, the circumstances are such that a provision (whenever made) contained in, or made under, this or any other Act requires the complainant to be regarded for the purposes of this Part as unfairly dismissed.

(4)In relation to anything said or done which in the tribunal’s opinion was improper, or was connected with improper behaviour, subsection (1) applies only to the extent that the tribunal considers just.

(5)Subsection (1) does not affect the admissibility, on any question as to costs or expenses, of evidence relating to an offer made on the basis that the right to refer to it on any such question is reserved.”

Employment Law Cases on Pre-Termination Negotiations (Protected Conversations)

More articles on cases reported in the Employment Appeal Tribunal:

  • Privilege (arising from section 11A of the ERA) cannot be waived;

  • Six days to sign agreement amounted to to improper conduct; and

  • Misrepresenting strength of disciplinary case against employee amounted to improper conduct.

Read more articles: Settlement Agreements

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