Mr K Gallagher V Mckinnon’s Auto and Tyres Ltd: Employer-Employee Discussions are Confidential and Not Admissible in an Unfair Dismissal Claim
In the case of Mr K Gallagher v McKinnon’s Auto and Tyres Ltd, a discussion between an employee and employer about an offer to end the employee’s employment was a ‘protected discussion’. This was ruled inadmissible in his claim for unfair dismissal.
The Facts in Mr K Gallagher v McKinnon’s Auto and Tyres Ltd
Mr K Gallagher (“The Claimant”) commenced employment in October 2017 as the Branch Manager with McKinnon’s Auto and Tyres Ltd (“The Respondent”).
In June 2022, the Claimant contracted Covid and was absent from work for approximately 2 weeks. After this, the Claimant returned to work for 1 week but then broke his foot. He was then absent from work from 8 July 2022 until his employment was terminated.
On 1 August 2022, the Claimant was asked to attend a return-to-work meeting. The meeting was arranged by Ms Anne McKenzie, one of the company Directors, to discuss his absence as part of an “off the record” without prejudice discussion.
The Claimant was informed in the meeting that in his absence his duties had been carried out by two of the Directors and they no longer needed a branch manager at the branch. He was offered £10,000 and told this would be more than what he would get for statutory redundancy.
K Gallagher Was Given a Choice Between a Compensation Offer or Being Made Redundant
The Claimant was then told if he accepted this sum, a compromise agreement would be signed. Otherwise, if he rejected this offer then the company would proceed with a redundancy procedure. He was given 48 Hours to consider the offer. After the meeting, the claimant contacted the Respondent and asked for a financial breakdown of the figures which were provided on the same day.
On 21 November 2022, the Claimant was dismissed by reason of redundancy. He claimed unfair dismissal arguing improper pressure had been imposed on him to either accept the offer or face redundancy. The Claimant argued in the course of his employment that:
- he had been called to a meeting under the pretence it was a return-to-work meeting when it was a meeting to discuss redundancy.
- he had not had sufficient time to prepare for such a meeting where he argued the Respondent was rude and aggressive.
- his dismissal by way of redundancy was unfair.
The Respondent informed the Employment Tribunal that they would only be relying on the protection under section 111A of the Employment Rights Act 1996 covering protected conversations, not “without prejudice” privilege.
The Decision of the Employment Tribunal
The Employment Tribunal in this case was charged with deciding whether the discussion that took place on 1 August 2022 under section 111A of the Employment Rights Act was admissible or inadmissible in the Claimant’s claim for unfair dismissal.
They rejected the submissions by Mr K Gallagher that at the meeting Ms McKenzie had been aggressive and had used offensive words, preferring the evidence of the Respondent that the meeting had not been conducted in this manner.
The tribunal found that the pre-termination discussions that took place on 1 August 2022 were inadmissible in terms of 111A. Hence, it cannot be referred to in proceedings and any reference to these should be deleted from the claim. Additionally, the parties should make an application to the tribunal for further directions.
They considered the meeting had been conducted in a calm and measured way where the offer of compensation and reference to redundancy was not unreasonable and it was not necessarily a foregone conclusion that he would be made redundant.
Our Lawyers View
Steve Norton, Lawyer at Redmans, says, “In this case, the protected conversations that took place between Mr K Gallagher and his employer were not seen as including any improper behaviour in the way they were conducted by the Respondent.
The version of the nature of the conversations put forward by Mr K Gallagher was not believed by the tribunal when they analysed the competing evidence.”
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