Mr Esherwood, friend For the v Mr Irons, solicitor — 2022

The claimant, a registered nurse employed as an Aesthetic Nurse, had been on maternity leave from August 2020 when the respondent began an investigation into her conduct. The introduction to the judgment records that she brought claims for constructive unfair dismissal, maternity-related discrimination and notice pay by way of breach of contract. The hearing was not a substantive liability hearing; it was an open preliminary hearing on whether the 12 October 2020 discussions between the parties were admissible in later proceedings.

The tribunal accepted that the 12 October 2020 meeting and the later email were pre-termination negotiations within section 111A ERA 1996. It preferred the evidence of the claimant and her companion, Paul Esherwood, that Christopher Drummond did not say the proposed settlement offer was conditional on JD's approval. The tribunal also found that the respondent later withdrew the offer by a short email without explanation.

The tribunal further found that both Franchecika O'Neill and Christopher Drummond told the claimant that the disciplinary matter had been reported to the NMC and that the respondent was legally required to do so, when in fact no report had been made. It described those statements as at worst a deliberate untruth and at best callous indifference to the truth about a matter of great concern to the claimant. Referring to section 111A(4) and the ACAS Code of Practice on Settlement Agreements, the tribunal held that the unexplained withdrawal of the offer and the false statement about the NMC report were improper behaviour and similar to intimidation.

The result was that evidence of the 12 October 2020 pre-termination negotiations is admissible at the substantive hearing so far as it relates to the making and withdrawal of the settlement offer and to the statements about reporting the matter to the NMC. No substantive determination of the claimant's unfair dismissal, maternity-related discrimination or breach of contract claims was made in this judgment.