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 first name (required)

    Your last name (required)

    Your email (required)

    Your telephone number (required)

    Brief details of your enquiry

    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

    4.78 Average

    216 Reviews

    Valentina D

    Great service from Mel, she was very good at explaining every part of the settlement agreement and very efficient dealing with the HR team. Very professional team, I would definitely use them again in future if the opportunity came up.

    Posted 2 hours ago

    Olaf S

    I was very happy with the service that I have received. Thank You Regards

    Posted 3 hours ago

    Rebecca A

    I had a wonderful solicitor called Caroline who was so helpful and gave me all the information I need and explained everything in detail so I was crystal clear. Would highly recommend if you are in need of a solicitor!

    Posted 2 days ago

    Gareth J

    Very efficient, helpful and pragmatic support from Caroline. Happy to work with my requirements / suggestions but also made some very good points which helped to achieve a higher settlement amount. Would highly recommend Caroline and Chris.

    Posted 2 days ago

    Ellen S

    Excellent, professional, timely. Friendly when I needed it most. Would recommend to anyone.

    Posted 3 days ago

    Ellen S

    Excellent, professional, timely. Friendly when I needed it most. Would recommend to anyone.

    Posted 3 days ago

    Cristina G

    Very professional and reliable. Timely answers, clear and to the point. Always looking for the best for their customers.

    Posted 4 days ago

    Rob T

    Very professional and on target - highly recommended.

    Posted 1 week ago

    Anonymous

    Very efficient service and knowledgeable solicitors.

    Posted 1 week ago

    Anonymous

    Excellent response time from first contact. Quick and easy completion of documents required. Fast response to any queries I made.

    Posted 1 week ago

    Anonymous

    Redmans Solicitors did a great job and were very professional at all times. Would definitely recommend.

    Posted 3 weeks ago

    Gary P

    All good advice, prompt and efficient

    Posted 2 months ago

    Anonymous

    Excellent advice and customer service.

    Posted 3 months ago

    Aneet G

    I would definitely recommend Redmans. Very impressed with service provided. They were extremely proactive in handling my case which made things easier for me. Provided sound advice and resolution. Special credit for this goes to Chris who dealt with my case with great determination and consideration.

    Posted 3 months ago

    Fern M

    Very efficient and friendly

    Posted 3 months ago

    Neville S

    A professional and friendly service, which I would highly recommend.

    Posted 3 months ago

    Daniel T

    Extremely helpful and made a bad situation much more manageable. Where other solicitors seemed disinterested in my situation Redmans immediately made me feel like it was a team effort to achieve a more favourable outcome

    Posted 3 months ago

    Paul T

    Excellent, quick and informative. Chris was a real star and gave me confidence during the uncertainty if a redundancy settlement.

    Posted 3 months ago

    Marina E

    Felt in very capable hands was listened to and given excellent advice. Would not hesitate to recomend and use again if needed.

    Posted 3 months ago

    Rosa B

    Fabulous service all round.

    Posted 3 months ago

    Anonymous

    Redmans were quick to respond to my enquiry and dealt with my case professionally and personably. I received sound advice and was put at ease by Chris Hadrill, Partner.

    Posted 3 months ago