Pre-termination negotiations

The implementation of The Enterprise & Regulatory Reform Act 2013 has introduced a number of changes which have had an impact on employment legislation, and we have reported on these through previous editions of our newsletter.

A further change with effect from 29th July 2013 is of benefit to employers in relation to any pre-termination negotiations.

Previously, if an employer has had meetings and negotiations with an employee in an attempt to agree an exit strategy and appropriate compensation, which have been unsuccessful and broken down, the employee has been able to raise these discussions in any subsequent tribunal claim. Therefore our advice regarding this type of discussion has always been to tread carefully and be aware that they could potentially exacerbate an unfair dismissal claim.

The Enterprise & Regulatory Reform Act however states that these types of discussions will no longer be able to be taken into account by an Employment Tribunal when determining an unfair dismissal case, as the employer will be able to insist that they are confidential.

In the past these discussions have probably been “off the record” between boss and body and the majority of the time would have reached a solution for a fairly amicable end to employment. Our HR team would have suggested using wording such as “without prejudice”, especially if any offer were put in writing. This new piece of legislation should go some way to eliminating fear of having this type of off the record chat.

As always with new legislation, case law will be what actually determines how this regulation is applied, and whether or not this will allow a little more leeway for employers to at least broach the subject of agreeing a mutual parting!