By Jo Seery Professional Support Lawyer
& Matthew Rowlinson Employment Rights Lawyer
Background
Mr. Kevin Gallagher, formerly a branch manager at McKinnon’s Auto and Tyres Ltd, brought a claim for unfair dismissal after his role was terminated in August 2022. Gallagher sought to introduce evidence of pre-termination negotiations as part of his claim. At a preliminary hearing, the Employment Tribunal (ET) ruled that these discussions were inadmissible under section 111A of the Employment Rights Act 1996 (ERA). Gallagher appealed the decision to the Employment Appeal Tribunal (EAT).
Key Issues on Appeal
1. Admissibility of Pre-Termination Negotiations
Section 111A of the ERA makes evidence of pre-termination negotiations inadmissible in claims of “ordinary” unfair dismissal, unless improper behaviour occurred during the discussions. Gallagher argued that the employer's conduct during the meeting constituted improper behaviour, thereby rendering the evidence admissible.
2. Improper Behaviour Allegations
Gallagher asserted three key improprieties:
- The meeting was set up under false pretences, described as a “return to work” discussion but used to propose severance terms.
- He was given only 48 hours to consider a £10,000 redundancy offer, contrary to Acas guidance suggesting a minimum of 10 calendar days.
- The employer exerted undue pressure by stating that his role was redundant and implying dismissal was inevitable if the offer was rejected.
EAT Decision
The EAT, presided over by Judge Barry Clarke, dismissed Gallagher’s appeal, upholding the ET’s findings:
1. Pre-Termination Negotiations Were Properly Excluded
- The ET found no improper behaviour during the meeting or in the follow-up. The discussions were calm, and Gallagher was given an opportunity to consult with family and seek advice.
- While the meeting’s purpose was not transparent, this did not amount to impropriety sufficient to override the statutory inadmissibility of the negotiations.
2. Pressure Allegations Were Unsupported
- The EAT agreed that the 48-hour deadline for considering the verbal offer was not unreasonable under the circumstances. Gallagher could have accepted, countered, or rejected the offer.
- The employer’s statement that the role was redundant was found to relate to initiating a redundancy process rather than a definitive dismissal threat.
3. Cumulative Impact of Alleged Impropriety
- The EAT found that the ET had properly considered all allegations in context. Even taken together, the factors did not demonstrate undue pressure or improper behaviour.
Significance for Union Members and Representatives
This case underscores the importance of section 111A ERA in protecting confidential severance discussions, known as “protected conversations,” from being used in tribunal proceedings unless clear evidence of improper behaviour exists. Union representatives should note:
- Acas guidance on settlement agreements is influential but not legally binding. Employers may deviate from its recommendations without necessarily engaging in improper behaviour.
- Transparency as to the purpose of the meeting is to be encouraged but it may legitimately change depending on the circumstances.
- Claims of undue pressure require strong evidence, especially where redundancy discussions are involved.
The EAT judgment reaffirms the high threshold for overturning ET decisions on procedural grounds given that what constitutes improper behaviour is a matter of fact.
