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
Steve Bell
Managing Partner - Employment, Industrial Relations and Safety (Australia, Asia), Melbourne
Emma Rohsler
Regional Head of Practice (EMEA) - Employment Pensions and Incentives, Paris
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