Where a genuine attempt has been made to settle a dispute, details of the negotiations are not permitted in evidence before the Tribunal. However, the fact that without prejudice negotiations have taken place may be disclosed, when the content is not.
The without prejudice rule only applies where there is an existing dispute between the parties. The concept of “pre-termination negotiations” or “protected conversations” allows employers and employees to have confidential discussions regarding ending their employment relationship, even where there has been no previous dispute. Those discussions will not be used in evidence in any subsequent employment tribunal proceedings for unfair dismissal.
However, there has been some uncertainty as to the extent to which pre-termination negotiations can be referred to in subsequent employment tribunal proceedings.
In Faithorn Farrell Timms LLP v Bailey  the Employment Appeal Tribunal (EAT) considered the scope of section 111A of the Employment Rights Act 1996 where an employee brought claims for both unfair dismissal and discrimination and the pre-termination negotiations were referred to by both parties during the Tribunal proceedings.
An issue arose over evidence of ‘without prejudice’ principles, and, for the first time on appeal, ‘protected conversations’ which are set out under s111A ERA for Unfair Dismissal claims.
The Tribunal held that protected conversations cover not just the offers made, but the fact that pre-termination discussions have taken place. It was further held that the employer’s internal discussions, such as between different managers and Human Resources will also be protected.
The Tribunal held that privilege cannot be waived under section 111A. Section 111A ‘protected conversations’ are distinct from the without prejudice rule and must be looked at on their own terms.
This appears to be the first decision on the scope of section 111A and its interaction with the without prejudice rule and provides some helpful guidance to both parties and tribunals.
The case illustrates that complicated scenarios can arise when negotiations can potentially be covered by both the without prejudice rule and section 111A. It makes clear that a tribunal can consider evidence in relation to, say, a discrimination claim, but then disregard it in relation to an unfair dismissal claim arising from the same facts. However, this may pose some practical difficulties for tribunals in ensuring they are not influenced by the evidence they have heard.
Given the complex areas it is important that the processes followed are legally compliant. We recommend taking early advice should you be considering having any pre-termination negotiations
If you have any queries regarding the above you should contact Sally Morris at firstname.lastname@example.org or on 01905 734032.