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What is Section 111A ERA?
This guide has been written by a specialist employment solicitor
In November 2013 the then coalition government introduced a change in the law to allow employers or employee to offer a settlement agreement witout it being admissible in an employment tribunal claims for ordinary unfair dismissal claim. This promoted at the time as allowing employers to have frank conversations with employees and put forward the option of their employment ending with a deal (i.e. a settlement agreement).
While the offer of a settlement agreement will be inadmissible for an ordinary unfair dismissal claim, the offer remains admissible in other types of claims, such as discrimination, breach of contract or automatic unfair dismissal. If the employer acts improperly or places undue pressure on the employee to accept the the offer the protected afforded by Section 111A may be lost, meaning the offer would be admissible.
Section 111A of the ERA is the new clause introduced in the main employment law piece of legislation – the ERA 1996.
Plain English please.
Generally speaking you won’t be able to tell a tribunal your employer offered you a settlement agreement if you only bring an ordinary unfair dismissal claim. But if your employer acts badly in way it makes the offer, you might.
Is that the same as a Protected Conversation?
Yes. The phrase Protected Conversation is a colloquialism dating back to 2011 when the idea was first proposed by the Government.
The Without Prejudice rule
Check ou the the letter or email offering you a settlement agreement and you might see the following words lumped together‘ Protected Conversation under Section 111A of the Employment Rights Act 1996 & Without Prejudice’ .
But the the term ‘without prejudice’ not another word for a ‘protected conversation’.
If something is without prejudice it cannot be used in any court or employment tribunal proceedings. Unlike section 111A that only prevents the offer being used in an ordinary unfair dismissal claim, the without prejudice rule applies to any kind of legal civil or employment claims like workplace discrimination or harassment.
So what makes something ‘without prejudice’? Well, that’s probably for another blog to cover in detail but essentially there need to be an existing dispute between the parties that has already been commenced or is contemplated. An internal process like a disciplinary or a grievance may not qualify as ‘a dispute’ for these purposes.
Where can I learn more?
If you’ve had a protected conversation or are thinking about having one, and want to better understand the law in this area, feel free to speak to our specialist employment solicitor team.
