The Appeal Tribunal has handed down an important reminder about the limits of keeping conversations off the record.

Where an employer wants to divest themselves of an employee, the fact that a conversation with this intention is had at all can be used to show that the employer’s mind was already made up. For this reason, employers need the ability to keep offers of payment to employees in exchange for their departure, confidential.

The employer has two choices:

  1. They can try to have a conversation without prejudice. However, for this to apply there needs to be an existing dispute, or
  2. A protected conversation.  For this to apply, there must be no improper conduct.

It is common in a tribunal for an employee to want to reveal evidence of the employer making an offer, to show the employer’s mind was already made up. It is usual for the employer to object to this for obvious reasons.

In the case of Harrison v Aryman Limited, the employee became pregnant, and when she informed her employer, they made a protected offer for her to leave employment. She resigned and took the employer to tribunal. She said that the protected offer was not a protected offer and should be good evidence to show how the employer viewed pregnant employees.  The employer resisted this.

The judgement of the Appeal Tribunal was this. If an employee wants to present evidence of a protected offer because of improper conduct, then the tribunal will have to hear the evidence and make a finding as to whether there was improper conduct.

If however the employee asserts that the reason for dismissal (or constructive dismissal in this case) was an automatically unfair reason, such as pregnancy, then the offer is not protected and can be used in evidence without the tribunal having to make a finding of fact beforehand.

The lesson from this is to be very careful when making protected offers and ensure the reason the offer is being made is clear, and not an automatically unfair reason. 

Automatically unfair reasons include pregnancy, discrimination of any kind (including disability), or reasons linked to business transfers or because someone has concerns about matters such as health and safety.

The case can be read at this link:  https://www.bailii.org/uk/cases/UKEAT/2019/0085_19_2708.pdf