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legal alert: Protected conversations: keeping them “off the record”

12 Jan 2018

The Employment Appeal Tribunal’s decision last month in the case of Basra v BJSS Limited demonstrated the limitations of the “protected conversation” legislation contained in section 111A of the Employment Rights Act.

Mr Basra‘s employers, BJSS, wrote to him in March 2016 regarding concerns about his performance in his role as a technical architect. BJSS sent Mr Basra a second letter marked “without prejudice subject to contract” in which it suggested that he could avoid the risk of disciplinary sanctions by leaving under mutually agreed terms, including a settlement sum equal to 3 months’ net salary. On 3 March 2016 Mr Basra replied to say “I accept BJSS’ 3 month offer subject to contract and without prejudice; today will be the last day at BJSS”.

Mr Basra did not attend work the next day, submitted his final expenses and did not attend the later disciplinary hearing (although his solicitors later wrote to BJSS to advise that he had been signed off sick).

BJSS responded on 15 March 2016 to confirm that Mr Basra’s employment had terminated on 3 March 2016 by virtue of his email of the same date, which they had accepted as his resignation. Mr Basra claimed that he had been dismissed and as no settlement was reached, he brought a claim for unfair dismissal.

The Employment Tribunal’s first consideration was whether Mr Basra had either:

  • Resigned
  • Left his employment by mutual agreement; or
  • Been dismissed.

In reaching its decision, the Employment Tribunal chose not to consider any of the correspondence marked “without prejudice” which preceded Mr Basra’s “resignation” email of 3 March on the basis that this was the date of termination, and any discussions before this date were “pre-termination negotiations” which have “protected” status (under section 111A of the Employment Rights Act 1996) and therefore were not admissible in an unfair dismissal claim.

The Tribunal took the view that it could consider Mr Basra’s email of 3 March on the basis that the legislation only protects “pre-termination” negotiations (section 111A of the Employment Rights Act 1996) and the scope of that protection ended on 3 March when Mr Basra agreed to leave on the terms proposed (which the Tribunal concluded amounted to a resignation with immediate effect).

The EAT considered whether the Employment Tribunal had been right to disregard the pre-termination discussions preceding Mr Basra’s email of 3 March 2016 on the basis that these were protected “pre-termination” discussions under section 111A.

The EAT concluded that the Tribunal had failed to address the dispute regarding the correct termination date (i.e. whether this was the 3 March or 15 March) which had to be resolved before it could identify what discussions were “pre-termination” (and therefore protected). As such, the Tribunal’s decision to disregard the earlier without prejudice discussions (but not Mr Basra’s email of 3 March) was flawed. The Tribunal should have:

  • Decided the termination date first, considering all relevant evidence, including the without prejudice discussions; then
  • Having decided on a termination date, considered whether the termination was a dismissal or a resignation, excluding consideration of the pre-termination discussions when making that decision.


This case is a useful reminder for employers of the limitations of the protection under section 111A.  In particular:

  • The protection only applies to negotiations preceding claims of unfair dismissal and does not extend to claims of automatic unfair dismissal, whistleblowing or discrimination, for example;
  • If the employee can show “improper behaviour” (for example bullying or pressure) by the employer in the course of the discussions, then the conversation loses its ‘protected’ status;
  • Protection only applies to “pre-termination” discussions and therefore discussions and correspondence on or after termination will not be protected.

Given this, employers would be right to ensure settlement discussions are also without prejudice, in other words, a genuine attempt to settle a dispute already in existence.  Alternatively, employers shall only say or write things they would be happy to admit into evidence.

 
 
 

Contacts


Shona Morton | Solicitor

Email:
shona.morton@watsonburton.com
Tel:
0345 901 2036
 
 

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