Improper behaviour

Examples of improper behaviour under the Acas Code include:

• harassment, bullying, threats and intimidation;

• discrimination and victimisation;

• putting the employee under undue pressure to accept the terms offered by, for example:

◊ not allowing a reasonable time (usually 10 calendar days) to consider the offer and take independent legal advice;

◊ saying at the start of the negotiations that if the settlement proposal is rejected, the employee will be dismissed (see pages 12 to 13);

• by the employee, for example, threatening to undermine the employer’s reputation.

The Code says that improper behaviour does not include a party setting out “in a neutral manner” the reasons behind the settlement proposal, or factually stating what is likely to happen if no settlement is achieved, including the possibility of initiating a disciplinary process.

These new rules do not change the established rules on “without prejudice” conversations, which continue to apply across all jurisdictions. These established rules say that whenever there is a dispute between employer and employee, any negotiations to try to settle it will be confidential and cannot be disclosed to the tribunal unless there is “manifest inappropriateness” (i.e. improper behaviour). Settlement discussions conducted through Acas can never be disclosed to the tribunal.