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ARTICLE · 06 NOVEMBER 2019

When Can Off The Record Discussions Be Used In Evidence?

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Section 111A of the Employment Rights Act 1996 enables "pre-termination negotiations" to take place between an employer and employee to facilitate discussions.

United KingdomEmployment and HR

Section 111A of the Employment Rights Act 1996 enables "pre-termination negotiations" to take place between an employer and employee to facilitate discussions. Discussions of this sort, also known as "protected conversations" or "PTNs", are inadmissible in any later unfair dismissal proceedings. However, there are exceptions to this protection, including in relation to automatic unfair dismissal cases (such as whistleblowing, among others) and discrimination claims or where there has been "improper behaviour". Where an exception applies the discussions are not protected and are fully disclosable.

This case highlights some of the issues that arise where an employee argues the protection is not engaged.

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