Employment Rights Act 1996, section 111A

Confidentiality of negotiations before termination of employment

Part X Unfair dismissal

(1)Evidence of pre-termination negotiations is inadmissible in any proceedings on a complaint under section 111.

This is subject to subsections (3) to (5).

(2) In subsection (1) “pre-termination negotiations” means any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee.

(3)Subsection (1) does not apply where, according to the complainant's case, the circumstances are such that a provision (whenever made) contained in, or made under, this or any other Act requires the complainant to be regarded for the purposes of this Part as unfairly dismissed.

(4)In relation to anything said or done which in the tribunal's opinion was improper, or was connected with improper behaviour, subsection (1) applies only to the extent that the tribunal considers just.

(5)Subsection (1) does not affect the admissibility, on any question as to costs or expenses, of evidence relating to an offer made on the basis that the right to refer to it on any such question is reserved.F784]

Definitions used in section 111A 3

employment

(5) In this Act “employment”—

(a)in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and

(b)in relation to a worker, means employment under his contract;

Defined in s.230(5) · see it in the full Act

(6) This section has effect subject to sections 43K , 47B(3) and 49B(10) ; and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “worker”, “worker’s contract” and, in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by section 43K.

Defined in s.230(6) · see it in the full Act
employer

(4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

Defined in s.230(4) · see it in the full Act

(6) This section has effect subject to sections 43K , 47B(3) and 49B(10) ; and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “worker”, “worker’s contract” and, in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by section 43K.

Defined in s.230(6) · see it in the full Act
employee

(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

Defined in s.230(1) · see it in the full Act

Cases considering section 111A 10

L Tarbuc v Martello Piling Limited

[2026] EAT 58 · 28 April 2026

The inadmissibility rule applies only to ordinary unfair-dismissal proceedings. It did not exclude evidence of the protected conversation from the unlawful-deduction-from-wages and part-time-worker claims. The universal redaction and disclosure directions were erroneous (see paras [41]; [63]-[65]). The exception applies where the claimant's case contains circumstances requiring dismissal to be regarded as automatically unfair. The ET1 did not clearly plead the factual basis of a section 104 claim, so the Employment Judge did not err by failing to disapply section 111A on that basis (see paras [42]-[51]). The tribunal must assess alleged improper behaviour in the full circumstances and give reasons addressing the material allegations. It erred by considering only the manager's words and manner, without addressing the alleged ambush and lack of opportunity for a companion (see paras [53]-[56]).

Kevin Gallagher v McKinnon’s Auto and Tyres Ltd

[2024] EAT 174 · 25 September 2024Limits

Section 111A(1) creates the default inadmissibility of evidence of pre-termination negotiations in an ordinary unfair dismissal complaint. The EAT upheld the Tribunal’s application of that exclusion to both the fact and content of the negotiations. (see paras [5]-[6]; [43]-[44]) Section 111A(4) permits the Tribunal, where conduct was improper or connected with improper behaviour, to admit negotiations to the extent it considers just. The EAT held that the Tribunal had permissibly found no impropriety, so the exception did not arise. (see paras [7]-[8]; [42]-[43]) The EAT explained that the statutory exclusion does not extend to automatic unfair dismissal or discrimination complaints. The present claim was an ordinary unfair dismissal complaint. (see para [6])

Harrison v Aryman Ltd

[2019] UKEAT 0085_19_2708 · 27 August 2019Interprets

The EAT held that a ruling on the inadmissibility of pre-termination negotiations must address any live issues under section 111A(3) and (4). A limited acceptance that communications are pre-termination negotiations does not resolve the operation of those exceptions. The claimant's concession went only to the existence of pre-termination negotiations, not to the operation of every part of section 111A. The EAT treated the claimant as having accepted that the letter and ensuing discussions fell within the definition of pre-termination negotiations. That did not determine the exceptions in section 111A(3) and (4). Section 111A(3) applies according to the claimant's pleaded case that a statutory provision requires the dismissal to be regarded as automatically unfair. It does not depend on whether that case ultimately succeeds. The amended particulars sufficiently raised a pregnancy-related automatic-unfair-dismissal case. Section 111A(4) requires the Tribunal to find whether improper behaviour occurred and then decide the extent to which exclusion of the negotiations is just. The claimant's allegation of pregnancy-related discriminatory conduct was sufficient to require that issue to be considered.

2 more judgments, and what each says about section 111A, are in the case-law panel in the full Act.

Amendments and notes

1 notes from legislation.gov.uk

Amendments

  1. F784S. 111A inserted (29.7.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 14, 103(3) (with s. 24(4)); S.I. 2013/1648, art. 2(a)