Offers to end an employment relationship on agreed terms (i.e. under a settlement agreement) can be made on a confidential basis in certain circumstances. This means that they cannot be used as evidence in an unfair dismissal claim to an employment tribunal.
The confidentiality of discussions applies where offers are made to end employment and there is no improper behaviour on the part of the employer and there are no claims that relate to:
- an automatically unfair reason for dismissal such as whistleblowing, union membership or the asserting of a statutory right
- discrimination, harassment, victimisation or other behaviour prohibited by the Equality Act 2010, or
- breach of contract or wrongful dismissal.
Where there is improper behaviour, anything said or done in pre-termination negotiations will only be inadmissible as evidence in claims to an employment tribunal to the extent that the tribunal considers it just.
It will be for an employment tribunal to decide what amounts to improper behaviour. It is however likely to include:
- All forms of harassment, bullying and intimidation
- Physical assault or the threat of physical assault.
- Discrimination because of age, sex, race, disability, sexual orientation, religion or belief, transgender, pregnancy and maternity and marriage or civil partnership.
- Putting undue pressure on a party. For instance:
- Not giving a reasonable period of time for consideration
- An employer saying, before any form of disciplinary process has begun, that if a settlement proposal is rejected then the employee will be dismissed.
