I think I speak for many in the employment law community when I say that Section 111A(4) Employment Rights Act has always been something of a disappointment. Here we have a provision which allows the protection of a protected conversation to be blown apart by improper behaviour, a term wholly undefined in the Act, and yet the cases on the point have been far fewer than the potentially infinite field of “improper behaviour” might have led you to hope.

To the rescue rides the Employment Appeal Tribunal in Gallagher -v- McKinnon’s Auto and Tyres Limited. This overturns one established “truth” about the protected conversation process and opens a new door for challenge under Section 111A(4) that I have not seen argued before, possibly because it concerns one of the few instances in HR practice where, when speaking to the employee, the employer is really obliged to lie.

Mr Gallagher had an extended period of absence on sickness grounds during which, somewhat to his surprise, McKinnon’s found that it could manage without him. He was invited to what was termed a “return to work” meeting, but when he got there he was instead told of this conclusion and offered an enhanced redundancy payment if he went away quietly. Gallagher said that at the meeting he had been treated aggressively, shown a written settlement agreement but not given it, sworn at and told that McKinnon’s would make him redundant anyway if he didn’t accept the offer in the next two days. He didn’t and so it did.

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