Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

In the case of Basra v BJSS Ltd [2017] 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.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

Your name

Your email

Your telephone number

Contact us

Please feel free to discuss your own position and concerns. Contact your nearest office on:

T: 020 3397 3603
E: enquiries@redmans.co.uk
W: www.redmans.co.uk

Testimonials

4.72 Average

89 Reviews

Anonymous

I requested Redmans services on a redundancy case. Both Chris and Rana were great, thoughtful, very professional and responded quickly. They were very clear throughout the entire process, regarding the process and my options and I couldn't feel I had better legal advice for my case. Overall excellent service and I would certainly recommend and use their services again.

Posted 1 day ago

Anonymous

Responsive, patient, thorough and personable - an excellent service.

Posted 5 days ago

Anonymous

The team at Redmans, Chris Hadrill and Sacha Barrett were always very helpful and had expert knowledge to assist me during my employment law matter, I would not hesitate to recommend them to all!

Posted 5 days ago

Arun T

Chris was punctual, attentive and accurate. He answered my questions with clarity and avoided dubiosity. I would recommend him to anyone seeking legal advice within his remit.

Posted 6 days ago

Yulian Z

Great service

Posted 6 days ago

Anonymous

Excellent, professional service and a speedy resolution. Many thanks

Posted 6 days ago

Taral P

Sacha and Chris were both very helpful in closing out my matter. Sacha was very clear in helping me understanding the documents I needed reviewing, providing a professional service throughout.

Posted 6 days ago

Anonymous

Really pleased with the swift and professional service from Redmans. They provided very clear advice and helped conclude my matter with the minimum of stress or delay.

Posted 6 days ago

Matthew L

Redmans were very quick to respond to my initial enquiry, and provided me with a very effective and efficient service, generating a most satisfactory outcome. I would definitely use them again if the need arose.

Posted 6 days ago

Anonymous

First rate service. Warm and friendly whilst exceptionally efficient at the same time. I would highly recommend them.

Posted 1 week ago

Anonymous

Professional and helpful. Thorough and supportive.

Posted 1 week ago

Richard A

Excellent service, prompt replies, great advice

Posted 1 week ago

Anonymous

Very professional services

Posted 1 week ago

Margaret

Redmans Solicitors took a lot of the worry away and were very thoughtful and meticulous in their dealings with my case , thank you very mush , great service and a great job

Posted 1 month ago

Mark B

Prompt efficient service. Hourly, and part thereof, billing got a bit stressful at times - as opposed to flat fee - made me think twice about sending an email or making a quick call when I had a query because it would have eaten up minutes from my budget. But happy with the legal service I received overall and would recommend.

Posted 1 month ago

Anonymous

Chris Hadrill has provided a truly wonderful service and was willing to lend his support and expertise at a time when other solicitors, only wanted to discuss their fees! A clear thinking and down to earth professional, Chris can be trusted to listen carefully to your matter, cut through the fog, and advise you on the best (and most realistic) way forward, saving you time, money and heartache. It will be helpful if you first get your ducks in a row in terms of documents / evidence etc. and then contact Chris, (that’s what we did) as this will help your matter to be dealt with faster. The more organised and together you are the more successful you will be. You'll be fine with Chris, I highly recommend him. Good luck!

Posted 1 month ago

Richard v

Excellent Service

Posted 1 month ago

Anonymous

Very happy from service received. Highly recommend

Posted 1 month ago

Colin W

Very professional and thorough. Sachs who dealt with the bulk of my case was excellent Thank you. .

Posted 1 month ago

Anonymous

I was generally impressed with the fast turn around, efficiency, responsiveness, and consideration of circumstances. I needed a couple of areas of advice quickly and with Redmans help was able to get to a conclusion quickly and with minimum stress. They were friendly and professional throughout - I'd use them again.

Posted 1 month ago

Anonymous

The guidance and assistance I recently received when using Redman's was fantastic. Caroline & Chris were both very informative and understanding walking me through each step. Thank you.

Posted 2 months ago