Greetings and welcome back to another weekly case law update. Last week we looked at harassment on several grounds including race, sex and sexual harassment. This week we are looking at settlement agreements and tribunal procedure regarding the admissibility of evidence.

Long-time readers may remember the case of Bailey v Faithorn Farrell Timms LLP which described how both S111A and the without prejudice principle work. Section 111A Employment Rights Act 1996 allows parties that are not yet in dispute (no claim issued) to have protected conversations about the termination of employment. Protected conversations are different to without prejudice conversations and slightly different legal principles apply to each.

S111A(3) & (4) state that if the employer behaves improperly during the protected conversation then the protected conversation will not be protected by S111A and will be admissible as evidence.

In light of the above and our previous case, today’s question is:

Is alleged improper conduct during settlement negotiations enough for evidence of settlement negotiations to be admissible as evidence?

Ms Harrison, the Claimant, worked for Aryma Ltd, the Respondent, as a craftsperson. The Claimant had worked for the Respondent for 15 years. The Claimant was a working mother and had informed the Respondent she was pregnant with her third child.

The Respondent purportedly had a history and culture of mistreating employees who raised pregnancy/maternity issues. The Claimant had allegedly suffered detrimental treatment as a result of starting a family following the births of her previous two children.

The Claimant informed the Respondent she was pregnant. The Respondent promptly sent her a without prejudice letter to discuss the termination of her employment. The offer was reportedly paltry. The offer to terminate employment was the final straw for the Claimant and she resigned citing the letter as a further act of pregnancy/maternity discrimination.

The Claimant brought claims for discrimination and constructive dismissal. The Respondent defended these claims and added that the letter sent to terminate employment was inadmissible as it related to an unfair (constructive) dismissal claim. With regards to the discrimination claim, the Claimant could not show the letter amounted to improper conduct.

A preliminary hearing was held to determine the admissibility of the letter. The ET held that the letter was inadmissible for the constructive dismissal claim and irrelevant to the discrimination claim. The Claimant appealed.

The EAT allowed the claim. Whilst the Claimant’s mere assertion that the letter was an act of discrimination was not enough to show improper conduct, the ET did not make sufficient findings of fact on the point. The point was remitted back to a fresh ET to make findings of fact.

The takeaway point:

No, a mere assertion that the employer has behaved improperly is not enough to make a without prejudice settlement negotiation or the contents of a protected conversation admissible as evidence. The ET should make sufficient findings of fact as to whether the assertion is true and allow/prevent the evidence accordingly.

Remember that evidence of discrimination during without prejudice communication may be admissible as evidence on the principles set out in the Mezoterro case against BNP Paribas.

Protected conversations only cover a limited number of claims, primarily unfair dismissal.