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…

May 30, 2022

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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Upholding her arguments, an ET found that an offer to settle her claim for £5,000 was made at the meeting but was withdrawn a matter of hours later without any explanation.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.

Employment and an Egregious Case of Pregnancy/Maternity Discrimination

Employers who discriminate against pregnant women or new mothers can expect to reap a bitter harvest of financial and reputational damage. An Employment Tribunal (ET) made that point in describing a woman’s suspension and dismissal whilst on maternity leave as one of the most egregious acts of discrimination possible. The woman’s boss viewed it as highly inconvenient when she and another employee became pregnant at roughly the same time and decided to engineer their departure. Not much more…

Foster Panel Chair an Independent Officeholder, Not an Employee

The distinction between an independent officeholder and an employee could hardly be more important but is sometimes difficult to discern. That was certainly so in the case of a woman who served for many years as an independent chair of a local authority’s fostering panel. After her appointment was terminated, the woman lodged an Employment Tribunal (ET) complaint against the council, alleging unfair dismissal and breach of contract. The council denied her claims and, at a preliminary hearing,…

Women are More Likely to Bear Childcare Responsibilities – That’s a Fact

Judges do not operate in a vacuum and are entitled to take the view that some facts are so obvious that there is no requirement to prove them. In an important ruling, the Employment Appeal Tribunal (EAT) found that that principle applies to the fact that women are more likely to bear childcare responsibilities than men. The case involved a community nurse who was primary carer for her three children, two of them disabled. Due to her responsibilities as a mother, she worked only on Wednesdays…