Harrison v Aryman Ltd

Where a claimant's amended case arguably engages both section 111A(3) and section 111A(4) of the Employment Rights Act 1996, an Employment Tribunal must clarify and determine those issues before ruling that pre-termination negotiations are inadmissible. A concession that communications were pre-termination negotiations under section 111A(1) and (2) does not, without more, dispose of the statutory exceptions.

Section 111A(3) depends on the case advanced by the claimant, rather than whether that case ultimately succeeds. Section 111A(4) requires findings on alleged improper behaviour and a decision on the extent to which exclusion of the evidence is just.

The claimant resigned after the respondent sent her a letter proposing a settlement agreement. She alleged that the letter was a pregnancy-related act of discrimination, a fundamental breach of contract and the basis for constructive dismissal.

At a preliminary hearing, the Employment Tribunal held that section 111A of the Employment Rights Act 1996 prevented reliance on the letter for unfair dismissal, but not discrimination, claims. It made a deposit order and determined related time issues.

The claimant appealed solely on the section 111A ruling. She contended that her amended particulars raised automatic unfair dismissal and improper behaviour, engaging section 111A(3) and (4).

1. Appeal allowed. The Employment Tribunal's ruling on section 111A was set aside and remitted for fresh consideration of section 111A(3) and (4).

2. The fair inference was that the claimant had accepted only that the August 2016 letter and ensuing discussions were pre-termination negotiations within section 111A(1) and (2). Neither party had addressed section 111A(3) or (4) orally. The Employment Judge therefore wrongly treated that limited point as disposing of the whole section 111A issue.

3. The amended particulars asserted facts capable of supporting a constructive automatically unfair dismissal claim based on pregnancy or maternity. The absence of express references to section 99 or regulation 20 was a matter of legal labelling. Section 111A(3) turns on how the claimant puts the case, not on whether it is ultimately established.

4. The particulars also alleged that presenting the letter was discriminatory and amounted to improper behaviour. This was capable of engaging section 111A(4), particularly given the relevant guidance in the ACAS Code. Under that subsection, the Tribunal must decide whether improper behaviour occurred and, if so, the extent to which exclusion remains just.

5. Although the claimant's representative had not actively pursued these points at the hearing, the detailed reactive amendment, the absence of later case management or an agreed list of issues, and the written reference to automatic unfair dismissal made it incumbent on the Employment Judge to clarify the live issues. The EAT did not determine the suggested effect of section 203, as it was unnecessary to the appeal.

• Employment Appeal Tribunal: Allowed the claimant's appeal and remitted the section 111A issues for fresh consideration.
• Employment Tribunal, Cardiff: At a preliminary hearing, held that section 111A of the Employment Rights Act 1996 excluded the settlement letter in relation to unfair dismissal but not discrimination claims.