Further thoughts on protected conversations

by Laurie Anstis on June 20, 2012

Following this morning’s post, I’ve been giving some more thought to how the new section 111A(5) of the Employment Rights Act 1996 might work. The proposed clause (read together with s111A(1)) is as follows:

(1) In determining any matter arising on a complaint under section 111 [an unfair dismissal claim], an employment tribunal may not take account of 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.

(5) Subsection (1) does not prevent the tribunal from taking account of a determination made in any other proceedings between the employer and the employee in which account was taken of an offer or discussions of the kind mentioned in that subsection.”

It is worded in a very particular way. The key thing is that the tribunal can take account of a “determination” “made in any other proceedings”.

The clause does not allow the tribunal to take account of the settlement discussions – those are still off limits – but the tribunal is entitled to take into account a “determination”. That “determination” has to be “made in any other proceedings”.

Constructive dismissal

What if an employee is told, “you’ve got no future here, you’d better take this settlement agreement“?

Sometimes an employee might not be told that, but that might be the interpretation they put on more delicate wording. The employee might, rightly or wrongly, consider this to be a fundamental breach of contract by the employer, and chose to accept that fundamental breach by resigning.

If the employee wants to bring a claim, and has sufficient service for an unfair dismissal claim, they are likely to bring a claim alleging that they have been constructively dismissed and that their dismissal is in breach of contract (they should have been given notice, but weren’t) and is unfair.

In deciding the breach of contract claim, the tribunal can take account of the “protected conversation”, but they can’t take account of it in deciding the unfair dismissal claim. The only way they can consider this in the unfair dismissal claim is that they can take into account a “determination made in any other proceedings”.

This suggests that the tribunal may have to decide the breach of contract claim first, with its decision then being a “determination” that it can take into account in the unfair dismissal claim. But is it a determination “made in any other proceedings”? If the breach of contract claim and unfair dismissal claim are brought together, then maybe not. They are different causes of action brought in the same proceedings. Does this mean that the employee needs to issue two separate tribunal claims – one for breach of contract and then one for unfair dismissal, so as to technically have “other proceedings”, even if they are later consolidated?

It is unclear whether the protected conversation provisions were ever intended to stop this kind of constructive unfair dismissal case. If they were not then it may be better to say that the protected conversation is inadmissible in determining the fairness of the dismissal (section 98 of the Employment Rights Act) rather than the whole question of unfair dismissal (s111). If this were done then it would also do away with the need for the new s111A(2) excluding automatically unfair dismissals from the remit of s111A(1).

Discrimination

What if the employer says (or the employee hears) “you’re getting too old for this job, why not accept this settlement agreement?“.

That statement could be used as evidence in any subsequent age discrimination claim, but not in an unfair dismissal claim. If the employee brings combined age discrimination and unfair dismissal proceedings, there is the same question as to how the tribunal should deal with the situation.

If the cases are heard together (as they probably should be), and the tribunal find age discrimination, are they then to perform some clever footwork to produce a “determination” on the age discrimination claim which can then be used minutes later in their judgment on the unfair dismissal claim? Is the unfair dismissal claim “separate proceedings” if brought at the same time as the age discrimination claim?

Improper behaviour?

Of course, either of those statements might be considered “improper”, so that they can be taken into account in an unfair dismissal claim under s111A(3) without any need for these complications. If so, then employers are going to have to be very careful about what they say.

Barrister David Renton has given his thoughts on the proposals here.