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Protected conversations and the date of dismissal
Basra v BJSS Ltd
A tribunal can hear evidence about protected conversations if the actual date of termination is disputed.
Pre-termination discussions between employer and employee are protected and cannot therefore usually be referred to by either party in an unfair dismissal claim, unless there has been ‘improper behaviour’ (s. 111A, Employment Rights Act 1996).
In early 2016 Mr Basra’s employers, BJSS, began to have concerns about his performance. They wrote to him, on a without prejudice basis, saying that the outcome of any disciplinary meeting could be a formal warning or dismissal and concluded by offering him a financial settlement if he didn’t want to go through the disciplinary process. Mr Basra responded, on 3 March, saying in an email ‘I accept BJSS’s 3-month offer subject to contract and without prejudice; today will be the last day at BJSS’. He didn’t attend work again and his solicitors informed BJSS that he’d been signed off sick. On 15 March BJSS responded saying that his employment had been terminated by agreement on 3 March.
Mr Basra brought an unfair dismissal claim. There was a dispute as to whether and when he had been dismissed, BJSS saying that he had resigned, or that his employment had been terminated by mutual agreement on 3 March, and Mr Basra saying that he had been dismissed on 15 March.
A tribunal held that he had resigned and had not been dismissed. In doing so, it said that it wouldn’t look at any of the correspondence marked ‘without prejudice’ which pre-dated Mr Basra’s email of 3 March because evidence before this point constituted pre-termination negotiations, which are ‘protected’, and thus inadmissible in an unfair dismissal claim. However, the tribunal did look at Mr Basra’s email of 3 March, because the legislation only protects ‘pre-termination’ negotiations, and it considered that the scope of the protection ended when Mr Basra agreed to leave on the terms proposed. Mr Basra appealed.
The EAT allowed his appeal. Negotiations are ‘protected’ until the point at which employment is terminated. Here, however, the date of termination - 3 or 15 March - was disputed. A tribunal cannot say what evidence should be excluded until such a dispute is settled.
Here the tribunal got it wrong. What it should have done was first work out when the contract was terminated – and consider all the evidence relevant to that. This could include evidence of any negotiations about termination. After this, the tribunal should exclude consideration of any pre-termination conversations. The tribunal was therefore wrong to disregard evidence of negotiations before the first of the two possible termination dates before it had decided if that was the termination date. If the termination date had been 15 March, rather than 3 March, Mr Basra’s email of 3 March might itself be a protected email.
Where however the termination date is agreed but the parties are in dispute as to the nature of the termination (i.e. dismissal, resignation or mutual agreement), then all evidence of pre-termination negotiations can be excluded. If an employee claims constructive dismissal following settlement negotiations, he or she should not be able to rely on matters arising during negotiations as entitling them to resign, unless those matters involve ‘improper behaviour’.
Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2017/0090_17_1912.html
It is difficult for a tribunal to put out of its mind the evidence of pre-termination discussions, which it has had to read in order to agree the effective date of termination, as they have actual knowledge of those pre-determination discussions. It would seem that the only fair way of approaching this would be for one tribunal to consider the effective date of termination as a preliminary point and then a fresh tribunal consider whether this is a dismissal or not.