The Government has published an amendment to the Enterprise and Regulatory Reform Bill preventing employment tribunals hearing claims of unfair dismissal from taking into account any offer made, or discussions held, with a view to an employee's employment terminating on agreed terms.
The provision inserts a new S.111A into the Employment Rights Act 1996 which would not apply to claims of automatically unfair dismissal and, to the extent that a tribunal considers it just, in relation 'to anything said or done which in the tribunal's opinion was improper, or was connected with improper behaviour'.
By including pre-termination 'discussions', the Government appears to have gone further than previously indicated by the Business Secretary, Vince Cable, during the Bill's Second Reading on 11 June, when he announced that the Bill would contain an additional clause which would 'ensure that the offer of a settlement cannot be used against an employer in an unfair dismissal case'.
Protected conversations are intended to enable employers and employees to talk about any concerns that they have without fearing that such discussions will be used against them in any subsequent litigation. An important difference between the protection afforded by this new clause on settlement agreements and that provided by protected conversations is that it only relates to unfair dismissal claims. Consequently, it may not completely address employers' fears that discussions about work issues could be used against them.
The proposed clause will have to be approved during the Bill's passage through the House of Common's Committee stage and may be subject to further amendment.
For further information please visit:
http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0007/amend/pbc0071906a.13-14.html
http://www.bis.gov.uk/assets/biscore/employment-matters/docs/r/11-1365-resolving-workplace-disputes-government-response.pdf
