Employment – Improper Behaviour in Pre-Termination Negotiations

Evidence concerning negotiations that take place prior to termination of employment are generally inadmissible in Employment Tribunal (ET) proceedings. However, as a guideline decision showed, that rule can be disapplied where such negotiations are marred by improper behaviour on the part of one side or the other.

An aesthetic nurse who worked for a cosmetic surgery practice was on maternity leave when she was informed that she was to be the subject of disciplinary proceedings. She denied any wrongdoing, asserting that the allegations against her were fabricated. Before she was due to attend a disciplinary hearing, she was invited to a without prejudice meeting at which settlement terms were discussed.

By virtue of Section 111A of the Employment Rights Act 1996, what was said and done at that meeting would usually have been inadmissible as evidence in any subsequent employment proceedings. The nurse, however, argued that the bar on admissibility should not apply given the improper behaviour of certain of the employer’s representatives at the meeting.

Upholding her arguments, an ET found that an offer to settle her claim for £5,000 was made at the meeting but was withdrawn a matter of hours later without any explanation. That conduct served to increase her stress, anxiety and sense of vulnerability as a new mother. It undermined her ability to defend herself, whether in settlement negotiations or at a disciplinary hearing.

She was unequivocally informed at the meeting that the matter had been reported to the Nursing and Midwifery Council. No such report had in fact been made and statements to that effect were at worst deliberately untrue and at best demonstrated a callous indifference to the truth in respect of a matter that was of utmost concern to her. She feared for her career and statements that a report had been made fed her anxiety and amounted to a clear act of intimidation.

The ET’s ruling meant that relevant evidence concerning improper behaviour at the meeting would be admissible at the substantive hearing of her case, in which she was claiming constructive unfair dismissal, maternity-related discrimination and breach of contract in failing to meet her entitlement to notice pay.