Protected Conversations

January 26, 2018, By

Unless either party has behaved improperly, s.111A Employment Rights Act 1996 operates to protect pre-termination discussions between employer and employee from being referred to by either party in any subsequent unfair dismissal claim in the Employment Tribunal. However, the EAT held in the case of Basra v BJSS Limited that there is an exception to this rule if there is a dispute over the date of termination.

The Claimant in this case had sent an email to the Respondent saying “today will be the last day at BJSS”. This email was sent in response to a without prejudice offer letter that the Respondent had sent to the Claimant.  Following this email, the Claimant stopped attending work and subsequently brought a claim for unfair dismissal.

The Respondent argued the Claimant’s employment had ended by mutual termination and that his email was a resignation. The Claimant denied resigning and said he had been dismissed by the Respondent at a later date. The tribunal at first instance excluded from consideration the Respondent’s offer made under s.111A on the basis that, unlike without prejudice correspondence, s.111A protection cannot be waived.

On appeal, the EAT held that as the protection under s.111A only applies to pre-termination negotiations, “the chronological line between what is, and what is not, admissible therefore lies on the point at which the contract is terminated” and that “where there is a dispute as to whether or not the contract was terminated on a particular date, the tribunal would not be in a position to say what evidence should be excluded until that dispute is determined“.

Therefore, as s.111A applies only to pre-termination discussions, the tribunal must first determine the date of termination before it is able to decide what is protected under s.111A.