Protected Conversations, discrimination for political opinions and other things arising from the Enterprise and Regulatory Reform Act 2013 which received Royal Assent on 25th April 2013. A number of its provisions come into effect this summer.

Pre-Termination Protected Conversations

From 29th July 2013, evidence of pre-termination negotiations, i.e. any offer or discussion of settlement terms relating to the termination of employment, will be inadmissible in ordinary unfair dismissal proceedings, unless there has been improper behaviour on the part of the employer.

The introduction of “protected conversations” in unfair dismissal proceedings is intended to allow open and frank discussions about a termination settlement proposal between an employer and an employee without fear that such conversations will be relied upon or referred to in ordinary unfair dismissal proceedings.

The new rule only applies to ordinary unfair dismissal proceedings and any evidence relating to pre-termination negotiations will be admissible in all other types of proceedings, for example claims of discrimination, automatically unfair dismissal and/or breach of contract.

Evidence of pre-termination negotiations that would otherwise be inadmissible will become admissible where the employer has acted improperly.  The government has confirmed that ACAS will provide guidance on what constitutes improper behaviour.

Dismissal for, or relating to, an Employee’s political opinions or affiliation

As of 25th June 2013, the qualifying period of employment has been removed where the reason or principal reason for an employee’s dismissal is, or relates to, their political opinions or affiliation.

This statutory change follows the case of Mr Redfearn.  Mr Redfearn was a bus driver in the UK who was dismissed after he became elected a local councillor for the British National Party.  Mr Redfearn could not bring a claim in the Employment Tribunal for unfair dismissal because he had not been continuously employed for the requisite qualifying period, currently two years.  Mr Redfearn attempted to claim discrimination on the grounds of race, religion or belief failed.  His claim failed.

The European Court of Human Rights held that UK law was in violation of the European Convention on Human Rights because it did not specifically protect employees dismissed on the grounds of their political belief or affiliation; Article 11 of the Human Rights Convention provides a universal right of freedom of assembly, irrespective of whether those views offend, shock or disturb.

Following Mr Redfearn’s appeal to the European Court of Human Rights, the Employment Rights Act 1996 has been amended to remove the requirement that an employee be employed for a minimum period before he is able to bring a claim for unfair dismissal where the reason or principal reason for his dismissal is, or relates to, his political opinions or affiliations.

Compromise Agreements to be re-named

From 29th July 2013 onwards, Compromise Agreements will be renamed Settlement Agreements in all relevant pieces of employment legislation.

If you would like any further information about the changes that have been or are about to be introduced by the Enterprise and Regulatory Reform Act 2013, or if you would like any other employment law advice, please do not hesitate to contact a member of our Employment Team.