The recent EAT case of Anne Harrison v Aryman Limited is a useful reminder that pre-termination discussions or protected conversations (under s111A Employment Rights Act 1996) are capable of being admissible as evidence in subsequent legal proceedings in certain circumstances.

After resigning in July 2017, Ms Harrison brought a claim against her employer for constructive unfair dismissal and discrimination on the grounds of sex and pregnancy and maternity discrimination. Ms Harrison’s claim made reference to a letter she had received from Aryman Limited in August 2016, proposing that her employment be terminated on the basis of a settlement agreement.  Ms Harrison considered this to be a reaction to her pregnancy announcement.  Aryman Limited asserted that s111A ERA 1996 meant that Ms Harrison could not rely on the letter in relation to any of her claims.   At a Preliminary Hearing, the Tribunal found that while Ms Harrison could not rely on the letter in respect of her unfair dismissal claim, it was admissible evidence insofar as her discrimination claim was concerned.

Ms Harrison appealed, claiming that the Tribunal had failed to consider whether either of the exceptions to s111A applied.

The EAT upheld Ms Harrison’s appeal.  Even though Ms Harrison’s claim did not expressly refer to the relevant exceptions, the EAT found that, given her assertions that she was automatically unfair dismissed because of her pregnancy or maternity and that the writing of the letter amounted to “improper behaviour”, the judge should have considered the exceptions set out in the legislation. The judge had failed to do so.  The case has been remitted to the Tribunal for reconsideration.

The EAT concluded that when it is alleged that the employee was dismissed for an automatically unfair reason then pre-termination negotiations/protected conversation will not be protected and will be admissible in evidence. Furthermore, if there is an allegation of improper behaviour from either party, the judge must hear evidence and make a finding of fact in relation to the improper behaviour which is being alleged to determine this point.

Our view is that employers should be wary of relying on protected conversations. It is all too easy for an employee to allege discrimination and/or automatic unfair dismissal then the protected conversation will be admissible as evidence before the Tribunal. In our view, employers are better served by using “without prejudice” conversations which are less restrictive, provided that you can show that there was a genuine dispute at the time that you had the conversation.

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