The claimant was made redundant but beforehand the respondent had spoken with him in what the employers considered to be a pre-termination negotiation and so protected by section 111A of the Employment Rights Act 1996. At the ET, the claimant argued that section 111A did not apply as the respondent’s conduct had been “improper”; broadly the settlement offer was given in an intimidatory take or leave it manner. The ET disagreed so the fact and content of the protected conversation were not admissible.

Judge Stone allowed the appeal as (in his own words)

"(1) The claimant had brought claims for unlawful deduction from wages and less favourable treatment as a part-time worker as well as unfair dismissal. Section 111A only applies to unfair dismissal and the judge had therefore erred in directing that the evidence of the protected conversation should be excluded from the evidence in relation to his other claims. (2) The judge had not erred in failing to identify of her own motion that the claimant had brought (or wished to bring) an automatic unfair dismissal claim under section 104 of the ERA 1996. (3) Although the judge’s decision on improper conduct was not vitiated by perversity, the judge had erred by dealing only with what was said by the respondent’s manager at the meeting, and how it was said, and not also considering matters in the round and, in particular, the claimant’s complaints about having been ‘ambushed’ by the meeting and not given the opportunity to bring a companion."