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New Law Aimed at Saving Tribunal Costs For Employers

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A change in current legislation expected to come into force later this month will enable employers to hold “pre-termination” discussions with employees in the knowledge that such employees cannot use the discussions as grounds for constructive dismissal.

hlw Keeble Hawson LogoThe development is part of a series of reforms designed to reduce the frequency and cost of Employment Tribunal claims of which there were 186,300 registered in 2011/2012.

At present, employers seeking to discuss possible “exit deals” with employees must attempt to do so on a “without prejudice basis” because otherwise the talks might be seen as destroying the bond of mutual confidence and trust between employer and employee - and could give rise to claims for constructive dismissal. 

Under current legislation if the case goes to an industrial tribunal, the employee might be allowed to give evidence about the discussions to support their claim, unless the employer can demonstrate that the talks were genuinely “without prejudice” attempts to resolve a pending dispute. 

The change will make evidence of pre-termination negotiations inadmissible in unfair dismissal claims,  with the employee normally being unable to rely on the discussions as evidence. 

However, where the employer has behaved “improperly” in the view of the Tribunal, the evidence might still be admissible.

If you would like further advice please contact Barry Warne on 0114 2521437 or barrywarne@hlwkeeblehawson.co.uk

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