Can an employee rely on confidential pre-termination negotiations with the employer as evidence in a tribunal claim?

Under s.111A of the Employment Rights Act 1996, pre-termination negotiations between an employer and an employee cannot be used as evidence in unfair dismissal claims. Pre-termination negotiations are defined as "any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee".

This allows employers to hold discussions with an employee about ending his or her employment and reaching a settlement agreement, without the employee being able to use the discussions as evidence that, for example, he or she has been constructively dismissed.

Pre-termination discussions are not protected under s.111A if the employee has been dismissed for an automatically unfair reason, for example taking maternity leave or asserting the right to the national minimum wage. In these circumstances, the employee can use the content of such discussions as evidence to support the claim.

Further, where something was said or done that, in the tribunal's opinion, was improper, the content of the discussions is protected only to the extent that the tribunal considers just. For example, if the employer's conduct during pre-termination negotiations amounts to bullying or intimidation, the tribunal can decide that the claimant can rely on such evidence.

The confidentiality of pre-termination negotiations applies only to unfair dismissal claims. Therefore, claimants can rely on what was said during pre-termination negotiations as evidence in other types of claim, for example a discrimination claim or a claim for breach of contract.