The law states that evidence of pre-termination negotiations cannot be used in any subsequent tribunal proceedings except in limited, specified, circumstances. In Basra v BJSS Ltd, the Employment Appeal Tribunal (EAT) held that if the effective date of termination is disputed, tribunals first have to establish the date before considering what evidence can be included or excluded.
Basic facts
After starting to have concerns about Mr Basra’s performance in early 2016, the company wrote to him on 1 March, inviting him to a disciplinary hearing. On the same day, it sent him a “without prejudice subject to contract” letter offering him three months’ salary in return for his immediate resignation. Mr Basra wrote back on 3 March saying he accepted the offer, subject to contract, and that his employment would end that day. On 7 March, he submitted an e-mail with his final expenses as he had said he would in his acceptance email.
A further exchange of emails ensued between Mr Basra’s solicitors and the company in which they said that as he was suffering from work-related stress, he would not attend the disciplinary hearing. The company wrote back on 15 March saying that his employment had ended by mutual agreement on 3 March. On 29 March 2016, Mr Basra wrote to his employer stating that he had not resigned and that he expected to return to work when fit. The company replied stating that his employment had ended by agreement on 3 March but if that was wrong, it had ended “at the latest” on 15 March. Mr Basra lodged a claim for unfair dismissal on 7 June, claiming that his effective date of termination was 15 March.
Relevant law
Section 111A(1) of the Employment Rights Act 1996 (ERA) states that evidence of pre-termination negotiations is inadmissible in any proceedings on a complaint under section 111.
Tribunal decision
The tribunal held that the preliminary issue to decide was whether Mr Basra’s employment had terminated by mutual agreement or whether he had been dismissed.
In order to come to a decision on that point, it excluded the without prejudice offer letter on the basis that those conversations were protected by section 111A ERA and were therefore inadmissible, but included Mr Basra’s “acceptance” email.
Relying on that evidence, it found that the email of 3 March amounted to a resignation and that Mr Basra had not therefore been dismissed from his employment.
EAT decision
As the protection under section 111A applies only to “pre-termination negotiations”, the EAT held that the tribunal first had to decide the date of termination of Mr Basra’s employment before going on to consider what evidence could be included or excluded.
Instead it had only considered the manner of his dismissal and had ignored without prejudice communications prior to 3 March (and therefore the employer’s letter) but had included material between that date and 15 March. In other words, Mr Basra’s acceptance e-mail.
The EAT therefore allowed the appeal on the basis that the tribunal was wrong to disregard the employer’s offer letter whilst including Mr Basra’s acceptance email when making its decision about whether he had resigned or been dismissed. It should instead have decided the date of termination before considering the effect of section 111A and remitted the case to the same tribunal to consider this point.