Mr GJZ Hunter v Represented by: Ms A Gordon - Solicitor French Duncan Wealth Management Ltd — 2020

This was a preliminary hearing in Glasgow before Employment Judge L Wiseman on 16 December 2019. The claimant, Mr GJZ Hunter, had presented a claim alleging unfair dismissal and notice pay, and the respondent applied under section 111A of the Employment Rights Act 1996 to exclude evidence of pre-termination negotiations from any later unfair dismissal hearing. The tribunal refused that application and held that evidence of the negotiations would be admissible in the subsequent unfair dismissal proceedings.

The tribunal found that on 15 April 2019, after a second investigation meeting, the claimant was invited to a disciplinary hearing and was at the same time handed a document headed as a without prejudice proposal under section 111A. The claimant sought legal advice the next day, asked for more time, and the deadline was extended first to 23 April 2019 and then to noon that day. The disciplinary hearing took place at 12.10pm on 23 April, suspension and restrictions continued, settlement discussions resumed on 24 April, a revised counter-proposal was made on 25 April, and the claimant was dismissed the same day.

On the legal issue, the tribunal held that the offer and counter-proposals were pre-termination negotiations within section 111A(2). It accepted that paragraph 12 of the ACAS Code of Practice on Settlement Agreements set a general rule that parties should be given a reasonable period, normally 10 calendar days, to consider proposed terms, and it rejected the respondent's argument that this period only began once final settlement terms had been agreed. The tribunal found the respondent gave the claimant too short a time to consider the proposal, with most of the extension falling over non-working Easter days, and offered no explanation for the tight timescales.

The tribunal also found that the claimant was put under undue pressure because settlement discussions were run alongside the disciplinary process and re-entered while he was still awaiting the outcome of the hearing. It concluded that the respondent had behaved improperly for the purposes of section 111A(4), so the statutory exclusion did not apply and the pre-termination negotiations could be relied on in the later unfair dismissal hearing.