Pre-termination negotiations ‘won’t make much difference to employers’

The Government’s new pre-termination negotiations will have little impact on the workplace, according to a North West law firm.

The pre-termination negotiation rules came into force at the end of July and introduce a legally protected conversation that is inadmissible in unfair dismissal claims.

Heather Grant, employment lawyer at Maxwell Hodge, said: “Pre-termination negotiations have been vaunted as a revolution in employment law.  Some commentators have even called their introduction a “bully’s charter”, but the reality is they will have little impact on the way employers manage employee relations.”

In a pre-termination negotiation an employer can address an employee’s misconduct or underperformance and seek to negotiate a mutually agreed exit package from the business.  If the negotiations are unsuccessful, the employee cannot refer to the discussion in any subsequent unfair or constructive dismissal claims.

Grant argues, however, that these negotiations aren’t as confidential as they seem.  An employee only needs to raise make an allegation of discrimination or automatic unfair dismissal (such as a dismissal for blowing the whistle) and the pre-termination negotiation can be used as evidence before a judge.

She says: “While pre-termination negotiations offer some element of protection to employers, the reality is they can still be used as evidence if the employee feels there has been undue pressure, they have been discriminated against or that their dismissal is automatically unfair.  So essentially pre-termination negotiations are only inadmissible to a limited extent.”

She adds: “The reality is, many employers will already take steps to negotiate an exit with an employee, regardless of the risk of that discussion being used against them in the Employment Tribunal.  Pre-termination negotiations are therefore unlikely to alter how employers deal with their staff; they just provide an extra level of comfort in some cases.”

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