In this case, the EAT has held that a tribunal can consider evidence of protected conversations where the effective date of termination is in dispute.
Mr Basra was employed by BJSS Ltd as a technical architect. During the early part of 2016, his employers began to have some concerns about his performance. In March, BJSS wrote to him inviting him to a disciplinary meeting. A second letter was sent, marked “without prejudice subject to contract”, informing him that a potential outcome of the disciplinary hearing could be a formal warning or dismissal, and spelt out the consequences of this for his career. This letter concluded with an offer of financial settlement should he wish to leave on agreed terms rather than go through the disciplinary process. Mr Basra responded by email on 3rd March, saying “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, without explanation, and he submitted his final expenses. He did not attend the disciplinary hearing. A few days later, his solicitors wrote to BJSS saying that he had been signed off sick. BJSS responded on 15th March stating that Mr Basra’s employment had been terminated on 3rd March. There was a dispute as to whether and when Mr Basra had been dismissed, BJSS saying that Mr Basra had resigned, or that his employment had been terminated by mutual agreement on 3rd March, and Mr Basra saying that he had been dismissed. No settlement was reached, and Mr Basra brought a claim of unfair dismissal.
The tribunal had to decide whether Mr Basra had resigned, his employment had been terminated by mutual agreement, or whether he had been dismissed. The tribunal said that it would not look at any of the correspondence marked “without prejudice” which pre-dated Mr Basra’s email of 3rd March because evidence before this point constituted pre-termination negotiations, which are “protected”, and are therefore inadmissible in an unfair dismissal claim. However, the tribunal did look at Mr Basra’s email of 3rd 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. Looking at the wording of the email, it believed that his resignation was unambiguous. Mr Basra had not, it decided, been dismissed and so could not bring an unfair dismissal claim.
Mr Basra appealed to the EAT, and the EAT allowed the appeal. Negotiations are protected until the point where the employment is terminated. Here, however, there was a dispute about the date of termination – 15th March or 3rd March. The tribunal should have determined, as a preliminary issue, when the contract was terminated, and in doing so it should consider all the evidence relevant to that. This might include, if relevant, evidence of any negotiations about termination. It is only when the tribunal has decided on the termination date that it can proceed to consider whether that termination was by the employer, and was therefore a dismissal for the purposes of an unfair dismissal claim. After determining the date of dismissal, the tribunal should exclude consideration of any pre-termination conversations. The tribunal had therefore erred in disregarding 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 15th March, rather than 3rd March, the email of 3rd March might itself be a protected email.
The EAT also went on to give its view that, in a case where the termination date is agreed but the parties are in dispute as to the nature of the termination (dismissal, resignation or termination by mutual agreement), evidence of pre-termination negotiations should be excluded. Therefore, if an employee claims constructive dismissal following settlement negotiations, the employee should not be able to rely on matters arising during negotiations unless those matters involve “improper behaviour”. The case was remitted to the employment tribunal to re-examine its findings.
What does this mean for employers?
While this case clarifies another point in this emerging area of law, it is also a reminder for employers that protected conversations have their limitations including:
It will usually be necessary to hold “open” conversations at the same time as the protected conversations. The settlement negotiations will be protected from scrutiny by a tribunal, but day to day management conversations will be “open”. Employers should keep the open and protected conversations separate from each other.
Both parties need to ensure they use careful wording in any correspondence relating to termination of employment whether on an open or protected basis (which could also include without prejudice communications). It is more usual for the parties to talk about leaving mutually if suitable terms can be agreed.
While settlement negotiations are going on in the background, employers must be careful to protect their open position, in case settlement negotiations are unsuccessful.
Employers embarking on settlement discussions must have a Plan B, in case settlement agreements break down. For example, they must be prepared to go through a fair disciplinary procedure before a dismissal decision is taken. Nothing said on an open or protected basis should undermine their ability to do this.
An agreement in settlement negotiations that an employee will resign is not necessarily the same as a resignation. Employers should only treat an employee as having resigned if there is a clear and unambiguous resignation. Without such a resignation, and in the absence of a signed settlement agreement, actions such as handing work over to colleagues, and announcing that the employee is leaving, can be used to trigger a constructive dismissal claim and will not be protected from disclosure in tribunal.