Undue Pressure and Protected Conversations

In his latest blog, Clive Mackintosh, an experienced settlement agreement solicitor explores 'protected conversations' and the concept of 'undue pressure'.

A recent decision of the Employment Appeal Tribunal has shed light on the circumstances in which an employer’s behaviour during pre-termination discussions may amount to improper behaviour under section 111A of the Employment Rights Act 1996.

Section 111A of the Employment Rights Act 1996 (ERA 1996) introduced the concept of "protected conversations" in employment law. These conversations aim to facilitate discussions between employers and employees about potential termination of employment, often with the goal of reaching a mutually agreed settlement. However, the protection afforded by Section 111A is not absolute, and the concept of "undue pressure" can significantly impact its application.

What are Protected Conversations?

Protected conversations, also known as pre-termination negotiations, are discussions held between an employer and an employee with the intention of terminating the employment relationship on agreed terms. The purpose of these conversations is to explore potential settlement options and avoid the need for formal tribunal proceedings.

The protection offered by Section 111A means that the content of these conversations are generally inadmissible in unfair dismissal claims. This confidentiality is designed to encourage open and honest discussions between the parties involved.

The Concept of Undue Pressure

While Section 111A provides valuable protection for both employers and employees, it is important to understand that this protection is not unlimited. The concept of "undue pressure" can arise in the context of protected conversations, potentially undermining the confidentiality and fairness of the process.

Undue pressure can be defined as any conduct or behaviour that coerces or intimidates an employee into agreeing to a settlement or termination of employment against their will. This can include:

• Threats of disciplinary action or dismissal if the employee does not agree to the proposed terms.
• Withholding information relevant to the employee's decision-making process.
• Creating a hostile or intimidating work environment.
• Making unreasonable demands or setting unrealistic deadlines.

The Impact of Undue Pressure

If an employment tribunal finds that undue pressure was exerted during a protected conversation, the protection afforded by Section 111A may be lifted. This means that the content of the conversation could become admissible in an unfair dismissal claim, potentially damaging the employer's case.

Additionally, undue pressure can give rise to other legal claims, such as constructive dismissal or wrongful dismissal. These claims can result in significant financial and reputational damage for the employer.

Gallagher v McKinnon’s Auto and Tyres Ltd [2002] EAT 174

In this case, the Employment Appeal Tribunal (EAT) upheld the decision of the originating Tribunal Judge, that the employer’s conduct did not amount to improper behaviour. The Tribunal found that a meeting which had been presented to the employee as a ‘return to work’ meeting but which turned out to be a meeting to discuss his potential redundancy was conducted calmly and the employee allowed a reasonable period of time to consider an offer of enhanced redundancy.

This case illustrates that the determination of improper behaviour will always be fact specific and requires careful consideration of the context and conduct of the parties involved.

Mr Gallagher was invited to a meeting understanding that its purpose was to discuss his return to work. Instead, he was presented with an offer of £10,000, which his employer told him was an ‘enhanced redundancy ‘package and he would need to make his mind up within 48 hours on accepting or rejecting the offer.

Surprisingly, the Tribunal Judge accepted that the employer’s invitation to the meeting had been ‘mislabelled’ and therefore unfair to Mr Gallagher causing him unnecessary upset and shock.

However, the EAT found that the Tribunal Judge had not erred in law and had considered that Mr Gallagher’s employer had given him time to discuss the offer with his family and provided him with further information about his potential redundancy and in a timely manner.

Had, the Tribunal Judge not come to this conclusion, Mr Gallagher would have been allowed to refer to this mislabelled meeting in his subsequent claim for unfair dismissal.

Advice to Employees

The decision of the EAT is an important one for an employee asked to attend a meeting with his / her employer, in circumstances where neither party is yet in dispute with the other.

The EAT has now made clear that an employer no longer needs to invite an employee to a formal meeting under section 111 A of the Employment Rights Act 1996.

Thus, an employee faced with such a scenario should:

• Make a calm and collected decision on whether to continue to participate with such a meeting.
• Make clear to their employer that they reserve their legal right to refer to any improper or undue influence or pressure to accept an offer in circumstances where they have not been given sufficient information and time to consider it.
• Always insist that the offer is subsequently communicated in writing and them, and they are given a reasonable period in which to obtain legal advice.

For advice on concluding your settlement agreement contact Clive Mackintosh today, call 0330 043 8845, email clive@solicitor.help, or request a call back.