Associate and head of employment and HR at Gordon Brown law firm in Newcastle-upon-Tyne Deb Tweedy talks about terminating employee contracts when it’s not working out

Quite often, and for no particular reason, employers can determine that an employment relationship is not working.

It need not be an issue of conduct, it need not be an issue of capability, it could simply be personalities, a divergence of opinion as to strategy or practice, or whatever.

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Historically there has been no easy way of broaching the subject for fear that any conversation could trigger a claim for constructive or unfair dismissal.

Section 111A of the Employment Rights Act now makes it possible to have “pre-termination negotiations” which are inadmissible in an employment tribunal claim for unfair dismissal.

You can now have the conversation and it cannot be used against you.

As always, there are limits to this procedure.

Pre-termination negotiations means any offer made, or discussions held, before the termination of employment with a view to it being terminated on terms agreed between the employer and the employee.

But that is as far as it goes. So:

1. It only covers claims of unfair dismissal. It does not, for example, cover claims of unlawful discrimination;

2. It does not cover cases when allegation may be made that the dismissal was for a reason which, if upheld by a tribunal, would constitute automatic unfair dismissal;

3. If something is said or done in the discussion which, in a tribunal’s opinion, was improper or connected with improper behaviour, the tribunal can admit evidence to the extent that it considers it just;

4. Evidence of pre-termination negotiations can still be referred to on any question as to costs or expenses.

As always, Acas has produced a Code of Practice which employers can view, and which should assist in avoiding improper behaviour.

This might include harassment, bullying and intimidation, assault or the threat of assault, victimisation, discrimination or putting undue pressure on the employee.

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