Under Section 111A(1) of the Employment Rights Act 1996, evidence relating to pre-termination negotiations is inadmissible if an employee later brings a claim of unfair dismissal, subject to certain exceptions. The Employment Appeal Tribunal (EAT) recently ruled on a man’s appeal against an Employment Tribunal (ET) decision that nothing improper had occurred at a pre-termination meeting with his employer and it was therefore inadmissible as evidence in his unfair dismissal claim (Gallagher v McKinnon’s Auto and Tyres Ltd).

The man had been employed as a branch manager for nearly five years. After his absence from work due to COVID-19 infection and a broken foot, his employer considered that they could continue without a branch manager. He was invited to a meeting, the purpose of which was said to be to discuss his return to work.

At the meeting, however, he was offered an exit package by which his employment would be terminated with an enhanced redundancy payment. He was given 48 hours to consider the offer and was told that, if he rejected it, the company would go through a redundancy procedure. He was later dismissed.

He brought a complaint of unfair dismissal and sought to rely on the meeting as evidence of unfairness. The ET concluded that he had not been subjected to undue pressure and nothing improper had taken place during the meeting. The exclusion in Section 111A(1) therefore applied. He appealed to the EAT on the grounds that elements of the ET’s decision were perverse.

He claimed that it had effectively been proposed that he would be dismissed. However, the EAT noted that, while he had been told that his role could be covered by the directors, the ET had been clear that this did not mean that his dismissal would inevitably follow, and had explicitly noted that it would be necessary to consider redeploying him to a suitable alternative role.

He also contended that the meeting had been set up under false pretences. The EAT noted that the ET had clearly thought this unfair on him. However, the ET had considered the surrounding circumstances, including events that took place after the meeting, in reaching its conclusion that he had not been subjected to pressure that would constitute impropriety.

He further claimed that the fact that he was only given 48 hours to consider the offer constituted undue pressure. In concluding otherwise, however, the ET had taken into account that, had he accepted the offer, the pre-termination negotiations would have continued and he would then have been presented with a written offer.

The ET had concluded that the factors he had raised did not, individually or cumulatively, subject him to undue pressure, and it was open to it to do so. Accordingly, the EAT rejected the contentions of perversity and dismissed the appeal. The ET would therefore hear his unfair dismissal claim without regard to evidence of the meeting.