Settlement discussions and pre-termination remain the hot topic at the moment as they bed into practice. The discussions are confidential and cannot be used in evidence in ordinary unfair dismissal cases. No such rules apply in automatically unfair dismissal cases or other claims such as discrimination claims. If the discussions arose out of an existing dispute the without prejudice rule may still apply.
Where there is improper behaviour during the settlement discussions anything said or done in those discussions will only be inadmissible as evidence in claims where the Employment Tribunal considers it just. The ACAS Code of Practice on Settlement Agreements gives us some guidance, although it is ultimately for a tribunal to decide on the facts of the case as to what constitutes improper behaviour. It may include putting undue pressure on the other side including unreasonable time scales, harassment, bullying, intimidation or the use of offensive words or behaviour, threats of or actual physical assault, discrimination or any other form of unsavoury conduct not covered by this list.
Some representatives may need to examine their negotiation tactics in light of the first one and in particular there are times when a solicitor or HR representative (usually for the employer) demands a tight timescale for signature. The Code suggests that a minimum period of 10 calendar days to consider the actual settlement agreement would be reasonable.