In the case of Basra v BJSS Ltd  UKEAT 0090_17_1912 the Employment Appeal Tribunal held that pre-termination negotiations were admissible when there was a dispute as to what the ‘effective date of termination’ was.
The facts in Basra v BJSS Ltd
Mr Basra commenced employment with BJSS Ltd as a Technical Architect on 30 September 2013. He was a well-regarded employee for most of that time but in 2016 BJSS Ltd started to have concerns about his performance.
On 29 February 2016 Mr Basra met with Mr Michitson, a colleague at BJSS Ltd. Mr Basra’s account of this meeting was that he was told to resign by Mr Michitson; Mr Michitson denied this and stated that it was Mr Basra who offered to resign.
On 1 March 2016 BJSS Ltd wrote two letters to Mr Basra: the first letter inviting him to a disciplinary hearing (to take place on 7 March 2016) to consider the concerns they had regarding his performance; and the second letter making a ‘without prejudice’ offer informing him that he could be dismissed as a result of the disciplinary hearing and making an offer of financial settlement.
On 3 March 2016 Mr Basra sent an email to BJSS Ltd stating that he did not accept BJSS Ltd’s account of the hearing that took place on 29 February 2016 but that he wished to accept the financial offer put forward (and that 3 March 2016 would be his last day of employment at BJSS Ltd).
There was then a back-and-forth between Mr Basra (and his solicitors) and BJSS Ltd, and Mr Basra then (after a period of time when Mr Basra was off work ill) indicated on 29 March 2016 that he had not resigned and that he expected to return to work when fit. BJSS Ltd replied that date to confirm that they believed that Mr Basra’s employment had ended on 3 March 2016 by mutual agreement or, at latest, on 15 March 2016 when he had been categorically informed that his employment had ended.
Mr Basra submitted his ET1 on 7 June 2016, claiming that his employment had ended on 3 March 2016 (although this was later amended to 15 March 2016), and claimed that he had been unfairly and wrongfully dismissed. BJSS Ltd’s ET3 denied that Mr Basra had been dismissed and maintained that his employment had ended by mutual agreement; it also stated that there had been without prejudice correspondence with Mr Basra under the auspices of 111A Employment Rights Act 1996 and mentioned Mr Basra’s email on 3 March 2016.
The law on section 111A of the Employment Rights Act 1996
You can read our analysis of the law on section 111A of the Employment Rights Act 1996 by reading this article: Section 111A Employment Rights Act 1996 – what is it and what does it mean?
The decision of the Employment Tribunal
The Employment Tribunal held that section 111A Employment Rights Act 1996 precluded it from considering any of the without prejudice discussions that had taken place, whether or not it related to the issue of whether a dismissal had been unfair. The Tribunal therefore held that, following Mr Basra’s email on 3 March 2016, there had not been a dismissal and, for that reason, dismissed Mr Basra’s claim.
Mr Basra appealed this decision to the Employment Appeal Tribunal.
The decision of the Employment Appeal Tribunal
The Employment Appeal Tribunal (“EAT”) upheld Mr Basra’s appeal, holding that the effect of section 111A ERA 1996 was to preclude the Tribunal from relying on any pre-termination negotiations for the purposes of determining the fairness of a dismissal, but it did not preclude the Tribunal from relying on the fact and/or content of pre-termination negotiations for the purposes of determining what date the dismissal took effect on and how the dismissal had been effected (e.g. whether there had been a resignation or a dismissal).
Our solicitors’ view on Basra v BJSS Ltd
Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “The effect of this case is that pre-termination negotiations are not inadmissible for the purposes of determining the date on which a dismissal took effect. Employers should always be careful to ensure that any pre-termination negotiations are headed both ‘without prejudice’ and under ‘section 111A Employment Rights Act 1996’ in order to give themselves maximum protection in the event an Employment Tribunal claim is brought.”
The judgment of the Employment Appeal Tribunal can be found here.