Improper Behaviour under Section 111A of the Employment Rights Act 1996

RMIF members may be aware of this section of the Employment Rights Act 1996. It was introduced several years ago and in essence the section allows certain conversations between employer and employee to be inadmissible in any future Tribunal litigation. The idea was for employer and employee to be able to have open and honest conversations about issues that could lead to dismissal or resignation and to settle those matters out of the Tribunal, without having any such honest discussions used against them in litigation.

Since Section 111A was introduced however, it has just been clarified that there are certain important limitations on that non-admissibility of evidence. Where any allegation of discrimination is asserted in a Tribunal claim, then such discussions can still be admitted. A further area where discussions can still be admitted in litigation, is where there is “improper behaviour” on behalf of either party (but usually alleged to be on behalf of the employer).

The Employment Appeal Tribunal in Harrison v Aryman Limited has just given employers some degree of protection, as it is recently held that where a Claimant simply asserts that there was improper behaviour by an employer when negotiating a settlement that should be excluded from litigation. It is, instead, necessary for the Tribunal to decide that there was actually improper behaviour, by making findings of fact on that issue, before admitting it into the litigation evidence, so an assertion of improper behaviour is not enough.

By contrast, employers still have to be aware that where the circumstances of any dismissal are alleged to be automatically unfair (often because of discriminatory allegations), then it is sufficient for the Claimant to put their case in that way to the Tribunal for that evidence to be admissible (i.e. an allegation is enough).

If RMIF members find themselves in such conversations, they are advised to call the RMIF Legal Helpline who can assist with bespoke advice.

Motor Industry Legal Services

Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.