Tuesday, November 12, 2013

How to remove the protection from a protected conversation

Section 14 of the Enterprise and Regulatory Reform Act 2013 introduces a new section (111A) into the Employment Rights Act 1996, to provide that details of "pre-termination negotiations" should not be admissible in evidence in employment tribunal hearings about unfair dismissal.

(http://www.legislation.gov.uk/ukpga/2013/24/section/14/enacted)

For good employers this new law is unnecessary. For those who want to strong arm employees out of the organisation it appears to offer a handy new tool which they can use to bully workers without fear of being held to account.

Happily the tool is so poorly designed as to not be fit for this nefarious purpose. This is because evidence about the "pre-termination negotiations" will be admissible in evidence in any tribunal claim other than unfair dismissal (as well as being admissible in all cases where a dismissal is alleged to have been for a reason which would make it automatically unfair).

This doesn't just mean that (for example) the veil hiding the so-called "protected conversation" can be pulled away in any case where allegations of discrimination accompany those of unfair dismissal - it also means that the fact of the "pre-termination negotiations" can always be made admissible in any case in which an employee is summarily dismissed.

This is because, by virtue of the Industrial Tribunals (Extension of Jurisdiction) Order 1994 an employee who has been dismissed can bring a breach of contract claim before an employment tribunal. An employee who has been summarily dismissed can bring a claim for wrongful dismissal alongside any claim for unfair dismissal and can therefore introduce evidence about the conversation which their employer had hoped would be "protected."

No decent employer should consider making use of s111A anyway. But if they try, they should watch out.

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