The government has tabled an amendment to the Enterprise and Regulatory Reform Bill to provide that an offer made or discussion held with an employee with a view to terminating employment by agreement cannot be taken into account in unfair dismissal proceedings.
This could apply earlier than the current without prejudice protection, which can only be relied on once there is a live "dispute". But, as drafted, the proposal is unlikely to be of much use: there is no protection if an employee brings an automatically unfair dismissal or discrimination claim, and few employers are likely to be in a position to discount the possibility of such claims. Tribunals can also withdraw the protection if anything is said or done which in the tribunal's opinion is "improper" (which is not defined) or connected with improper behaviour.
The government has confirmed that the Bill will not be amended to provide for compensated no-fault dismissals (proposed in the Beecroft report).
Key contacts
Samantha Brown
Managing Partner, Employment, Pensions and Incentives, UK and EMEA, London
Steve Bell
Managing Partner, Employment, Industrial Relations and Safety, Asia and Australia, Melbourne
Emma Rohsler
Partner, Head of Employment, Pensions and Incentives, EMEA, Paris
Tim Leaver
Partner, London
Andrew Taggart
Partner, London
Fatim Jumabhoy
Partner, Head of Employment & Workplace Investigations, Asia, Singapore
Barbara Roth
Partner, New York
Christine Young
Partner, London
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