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Confidential pre-termination negotiations come into effect

Under new rules which came into force at the end of July, employers are now able to have certain discussions about the termination of an individual’s employment without them being used in unfair dismissal claims.

The Enterprise and Regulatory Reform Act 2013 added a new section, 111A, to the previous Employment Rights Act 1996, which means that any pre-termination negotiations will be inadmissible in unfair dismissal claims – unless the dismissal was for an automatically unfair reason.

Pre-termination negotiations are defined as “any offer made or discussions held before the termination of the employment in question with a view to it being terminated on terms agreed between the employer and employee”, and now include statements made where no dispute existed.

However, employers need to be aware of the fine line between claims for an automatically unfair reason and ordinary unfair dismissal ones when looking to benefit from this additional protection.

Furthermore, if there is any “improper behaviour” by either party – such as bullying, physical assault, discrimination or undue pressure – the protection provided by 111A can be removed, with evidence allowed if it is considered “just”.