The claimant had resigned from her job following receipt of a letter outlining that her employment be terminated on the basis of a settlement agreement.  The claimant alleged that this came on foot of the news that she was pregnant and there was history of detrimental treatment to those who were pregnant or other maternity related factors.  This centred upon Section 111A of the Employment Rights Act 1996.  It must be noted that there is no equivalent of this section in Northern Irish legislation.  Section 111A outlines that for the purposes of any unfair dismissal claim, there is confidentiality of any negotiations before the termination of employment.

On this point, the ET had held that Section 111A applied to the letter received by the claimant relating to her employment being terminated on foot of a settlement agreement. However, it held that it did not apply to the discrimination proceedings that had been brought.

The claimant appealed outlining that the Tribunal had failed to consider Section 111A(3) which states that the confidentiality would not apply where the circumstances are such that a provision under the Act requires the complainant to be regarded as unfairly dismissed. The argument was that the letter was not a genuine attempt to negotiate and that it related to the pregnancy of the claimant. The case of Faithorn Farrell Timms LLP v Bailey [2016] was referred to which had outlined the workings of Section 111A.  This stated that the section was distinct from and additional to ‘without prejudice’ communications.  It thus stops any of the communication being admissible for unfair dismissal cases, except for cases involving automatically unfair dismissal.

The EAT outlined the purposes of Section 111A and its exceptions.  In the decision at the Case Management Discussion, there was no reasoning for the decisions made on the point of Section 111A(3).  For this reason, the EAT found that the decision was not Meek compliant.  The case was therefore remitted to the ET for a decision on the admissibility of the letter under Section 111A.

Practical Lessons

This case demonstrates the importance of having evidence admitted proving certain claims.   The legislative confidentiality given under Section 111A is designed to allow for a free negotiation prior to any termination of employment but can cause issues when it is mixed with other allegations or reasons, such as pregnancy in this case.   This issue would not seemingly arise in Northern Ireland due to the lack of any statutory confidentiality.  This may be something that the Northern Ireland Assembly may have to examine if and when it becomes functioning. 
https://www.gov.uk/employment-appeal-tribunal-decisions/ms-anne-harrison-v-aryma-ltd-ukeat-0085-19-joj