Keep calm and carry on — pre-termination negotiations and settlement agreements in force from 29 July 2013
This confidentiality protection is lost where there is ‘improper behaviour’ including ‘undue pressure’. Litigation is almost inevitable over where the line is to be drawn between ‘improper behaviour’ and sub-optimal practice. However, not allowing the employee a reasonable time (the ACAS code recommends a minimum of 10 days) to consider the formal offer or suggesting that, if the offer is not accepted, dismissal will be an inevitable outcome, is likely to constitute undue pressure and therefore improper behaviour. As is often the case in employment law, reasonableness is the watchword — so, where appropriate, factually stating that disciplinary action may be an alternative if a settlement agreement cannot be reached is not likely to constitute improper behaviour or undue pressure.
It is important to be aware that pre-termination negotiations and settlement offers will be inadmissible as evidence only in ordinary unfair dismissal cases (in other words, not in breach of contract, discrimination claims or claims for automatic unfair dismissal such as dismissals due to being a part-time/fixed-term employee, making a protected disclosure or asserting a statutory right). It can often take only a little creative thinking to frame what appears to be an ordinary unfair dismissal claim as an automatically unfair dismissal claim or a discrimination claim, so employers should be live to this.
There is also a question mark over whether, in certain circumstances, pre-termination discussions could entitle an employee to argue that there has been a fundamental breach of contract entitling them to claim constructive dismissal — an attractive argument, perhaps, for a highly-paid executive wishing to escape a long notice period and post-termination restrictions…
If you are registered and logged in to the site, click on the link below to read the rest of the Walker Morris briefing. If not, please register or sign in with your details below.
Sign in or Register to continue reading this article
It's quick, easy and free!
It takes just 5 minutes to register. Answer a few simple questions and once completed you’ll have instant access.Register now
Why register to The Lawyer
In-depth, expert analysis into the stories behind the headlines from our leading team of journalists.
Identify the major players and business opportunities within a particular region through our series of free, special reports.
Receive your pick of The Lawyer's daily and weekly email newsletters, tailored by practice area, region and job function.
More relevant to you
To continue providing the best analysis, insight and news across the legal market we are collecting some information about who you are, what you do and where you work to improve The Lawyer and make it more relevant to you.
News from Walker Morris
News from The Lawyer
Briefings from Walker Morris
When a housing association sought possession against a tenant with severe mental health problems…
The aim of the directive is to ensure that consumers who purchase a property are protected against the risks. It also introduces EU harmonisation requirements on lenders.
Analysis from The Lawyer
Which firms are cutting it in this era of slimline rosters, and who are the GC new brooms making clean sweeps? The Lawyer can reveal all
The law school war shows no signs of ending. But we have, perhaps, reached the end of the beginning.