Mr Kevin Gallagher v McKinnon’s Auto and Tyres Ltd — 2023

This is a Scottish Employment Tribunal preliminary-hearing judgment by Employment Judge L Wiseman, sitting alone in Glasgow on 4 October 2023. The substantive claim is for unfair dismissal arising out of the claimant's redundancy on 22 August 2022 from his role as Branch Manager. The respondent had originally relied on both 'without prejudice' privilege and s.111A Employment Rights Act 1996 protected discussions, but withdrew the without-prejudice argument at hearing.

The Tribunal heard evidence about a meeting on 1 August 2022 at which Ms McKenzie (Director) told the claimant the directors could cover the manager role and offered him £10,000 (more than statutory redundancy) in exchange for signing a compromise agreement, with a 48-hour deadline. The claimant alleged the discussion was not described as off-the-record at the time and that he was told to sign or be made redundant. The Tribunal preferred the respondent's evidence on these points, finding the meeting was conducted without aggression and that the claimant was given a reasonable opportunity to consider the offer with his family.

The Tribunal considered each of the claimant's three challenges to admissibility (lack of advance notice, alleged threat of automatic redundancy, and 48-hour deadline being shorter than the ACAS Code's 10-day period for written settlement agreements) and concluded none amounted to improper conduct. Accordingly the discussions on 1 August 2022 were held to be a pre-termination negotiation and inadmissible in the proceedings under s.111A ERA 1996. The averments in the ET1 relating to those discussions are to be deleted.

Source tags (gov.uk)

• Unfair Dismissal

• s.111A Employment Rights Act 1996
• ACAS Code of Practice on Settlement Agreements

The full judgment is available on gov.uk under the Open Government Licence v3.0.

• Judgment 1 (PDF) ↗
• Judgment 2 (PDF) ↗