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Pre-termination negotiations

Many employers will recognise the appeal of being able to agree a termination settlement with an unsatisfactory employee rather than having to go through a lengthy disciplinary or performance improvement procedure. However, employers may be concerned that, by entering into negotiations, they will put themselves at risk of an unfair dismissal claim at the outset. In this article, we explain the legal context and effect of s.111A of the Employment Rights Act 1996, which aims to exclude evidence of "pre-termination negotiations" from unfair dismissal claims. We look at some of the difficulties employers may face when relying too heavily on the provisions in s.111A, and consider the extent to which pre-termination negotiations can be conducted in a reasonable way without the need to invoke the provisions.