I think I speak for many in the employment law community when I say that Section 111A(4) Employment Rights Act has always been something of a disappointment. Here we have a provision which allows the protection of a protected conversation to be blown apart by improper behaviour, a term wholly undefined in the Act, and yet the cases on the point have been far fewer than the potentially infinite field of “improper behaviour” might have led you to hope. 

To the rescue rides the Employment Appeal Tribunal in Gallagher -v- McKinnon’s Auto and Tyres Limited. This overturns one established “truth” about the protected conversation process and opens a new door for challenge under Section 111A(4) that I have not seen argued before, possibly because it concerns one of the few instances in HR practice where, when speaking to the employee, the employer is really obliged to lie. 

Mr Gallagher had an extended period of absence on sickness grounds during which, somewhat to his surprise, McKinnon’s found that it could manage without him. He was invited to what was termed a “return to work” meeting, but when he got there he was instead told of this conclusion and offered an enhanced redundancy payment if he went away quietly. Gallagher said that at the meeting he had been treated aggressively, shown a written settlement agreement but not given it, sworn at and told that McKinnon’s would make him redundant anyway if he didn’t accept the offer in the next two days. He didn’t and so it did. 

Gallagher started unfair dismissal proceedings and sought to rely on that conversation. McKinnon’s claimed that he could not use it because it was protected under Section 111A, and Gallagher alleged in turn that McKinnon’s had forfeited that protection through its improper behaviour at and before that meeting. 

The Employment Tribunal rejected the allegations that McKinnon’s management had been aggressive or sweary with him, and also that there had been a written settlement agreement on the table (literally, not figuratively). However it did accept three points in particular of his evidence. First, that he had been given only two days in which to accept the offer; second, that he had been told as a fact by McKinnon’s that his role was no longer needed; and third, that he had legitimately been shocked when what had been billed as a return to work meeting turned out instead to be about his not coming back at all. Nonetheless, the ET had concluded that none of this amounted to “improper behaviour” and therefore that Gallagher could not use that meeting or subsequent related correspondence to support his unfair dismissal claim.

On appeal, the EAT looked at each of Gallagher’s three points above. Easiest first – his second challenge confused a decision about role (that it was no longer needed) with a decision about a person. It is the employer’s prerogative to decide, even wrongly, that a particular role is no longer needed. The question for consultation is what that decision means for the employee. While the removal of a senior role in a small company is likely to mean that the employee is redundant, that is not inevitably the case. McKinnon’s having decided that Gallagher’s role was surplus to requirements did not amount to a statement that he would necessarily be made redundant if he did not take the offer. 

After all, the employer has to have a reason for starting a pre-termination negotiation in the first place, and it is only fair to the employee’s own decision-making on the proposal that he knows what it is. However, the EAT drew a distinction here between a protected conversation about redundancy on the one hand, and around possible disciplinary proceedings on the other. While the employer is entitled to make structural decisions around roles without prior consultation with the employee, it cannot legitimately present him with unilateral final conclusions around misconduct or poor performance in the same way, and doing so could well constitute improper behaviour. 

As to the smoke-screen reason for inviting Gallagher to the meeting, both the ET and the EAT went out of their way not to find that this had been a lie, even though it pretty clearly was. What is less clear is whether an invitation to a protected conversation made under false pretences (and let’s face it, they almost all are) would blow the protection under Section 111A. You can see the attraction of the argument that you don’t get much more improper than a lie, but against that, we must set the reality of these things. An invitation out of the blue to a meeting with HR about your maybe, you know, leaving the company, is simply going to send most employees to their lawyer and GP in that order, and to the submission of a grievance, a sick note and some pre-emptive whistleblowing or discrimination complaint. In the knowledge that Section 111A applies only to ordinary unfair dismissals and not to discrimination or whistleblowing claims, the employer may then feel obliged to back off, leaving an open wound in the relationship and no real means of healing it. 

Our advice will usually remain that if some anodyne explanation for asking to see the employee can be found, it should probably still be used, just to get the process underway. Ideally you would touch briefly on that reason at the outset before moving to open the more vexed question of the employee’s possible departure. Provided that you then stress to the employee that he is under no obligation to engage in that conversation with you and that you will not hold his not doing so against him, he will probably find it difficult to make too much out of this. Otherwise this case would be introducing a rule to the effect that you can only have a protected conversation on prior notice to the employee, which has never been the position and would largely emasculate it as useful management tool. 

But what about giving Gallagher only two days to accept? Everyone knows that it must be at least ten, unless you have very good reason, which was not the case here. That well-known and untrue fact comes from paragraph 12 of the ACAS Code of Practice on Settlement Agreements, but, noted the EAT, that is the period suggested for the consideration of a formal written settlement agreement, not an oral offer as here. All that McKinnon’s sought within two days was an agreement in principle, after which written terms would no doubt have been put forward. So long as there was no unreasonable pressure to sign those within those ten days, held the EAT with some audible sucking of teeth, there was no breach of the Code. However, please note that this does not make it a good idea either to shorten that period if you don’t need to or to have protected conversations without immediate written confirmation. You and the employee both need that record in order that there is no doubt around what you said and didn’t say (in particular, that the employee has not been nor will inevitably be dismissed, which is generally what he will hear). There is a suggestion for that follow-up letter at the back of the ACAS guidance, and while the language is a bit turgid, all the right messages are there to protect you against claims of improper behaviour.