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Pre-termination negotiations admissible as evidence whilst the EDT is in dispute

In the case of Basra v BJSS Limited (UKEAT/0090/17) the Employment Appeal Tribunal (EAT) confirmed that the s.111A of the ERA 1996 protection to exclude pre-termination negotiations does not apply while the effective date of termination (“EDT”) is in dispute.The case involved an appeal of the Employment Tribunal’s (“ET”) decision to exclude evidence of pre-termination negotiations under s.111A of the ERA 1996 in an unfair dismissal claim, where the EDT was yet to be determined.

s.111A of the ERA 1996 allows employers and employees to have confidential “off the record” discussions regarding terminating the employment relationship, even in circumstances where there is no existing dispute between the parties. Such discussions would therefore be inadmissible in evidence in any subsequent Employment Tribunal proceeding for an ordinary unfair dismissal claim.

Mr Basra was employed by BJSS Limited from 30 September 2013. On 29 February 2016 concerns were raised by BJSS to Mr Basra regarding his performance, in response to which Mr Basra suggested he could resign. A letter marked “without prejudice subject to contract” was subsequently sent to Mr Basra dated 1 March 2016 offering a settlement in return for the immediate termination of Mr Basra’s employment. This letter requested Mr Basra’s response by 7 March 2016 and was sent in addition to a separate letter inviting him to a disciplinary meeting.

On 3 March 2016 Mr Basra emailed his acceptance of the settlement offer in the following terms: “I accept BJSS’s three month notice offer subject to contract and without prejudice; today will be the last day at BJSS.”

A settlement agreement however was not signed, and Mr Basra subsequently confirmed he was signed off sick from work as a result of stress. Mr Basra therefore, did not attend the scheduled disciplinary meeting.

On 15 March 2016, BJSS wrote to Mr Basra confirming the termination of his employment from the Company with effect from 3 March 2016.

Mr Basra subsequently presented an unfair dismissal claim to the Employment Tribunal where the EDT and manner of dismissal were disputed. BJSS’ position was that Mr Basra’s employment ended by way of mutual agreement further to Mr Basra’s acceptance email of 3 March 2016, and Mr Basra’s position was that his employment was terminated by BJSS further to the letter dated 15 March 2016.

The Employment Tribunal found that Mr Basra’s employment ended following his acceptance email of 3 March 2016 and therefore his employment ended by way of his resignation from BJSS. In reaching its decision, the Employment Tribunal did not consider the “without prejudice” offer of 1 March 2016, whilst considering Mr Basra’s acceptance email of 3 March 2016.

On further consideration by the EAT, Mr Basra’s appeal was upheld. It was held that what falls to be determined as admissible or not under s.111A of the ERA 1996 depends upon the precise moment when the employment contract is terminated. Until the EDT is determined, a tribunal cannot say what evidence is admissible or not.

This case is therefore to be remitted to the same Employment Tribunal to re-examine its findings in light of the without prejudice correspondence sent by BJSS.

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further