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Last month, we asked whether, as an employer, you could rely on parts of a 'protected conversation' as evidence, whilst at the same time using those rules as a shield. Continuing this theme, we are looking at whether you could include information from a protected conversation as evidence to a Tribunal in an unfair dismissal claim.
An interesting case has bought up this issue, Basra v BJSS Limited, where the date of termination was part of the dispute.
Pre-termination discussions
Pre-termination discussions between employer and employee are protected under section 111A Employment Rights Act 1996. This means that they cannot be referred to by either party in an unfair dismissal claim, unless there has been "improper behaviour".
However, in the above case, the Employment Appeal Tribunal (EAT) held that there is an exception to this rule if the date of termination is in dispute.
Termination date in dispute
In this case, the employee wrote an email to the employer in response to a without prejudice offer letter it had sent. The email said "today will be the last day at BJSS". The employee then stopped attending work, and later brought a claim for unfair dismissal.
The employer, BJSS, argued that the Claimant's employment had ended by mutual termination and, in the alternative, the email was a resignation.
The employee denied resigning and said he had been dismissed by BJSS at a later date.
s111A protection
The Tribunal noted that s111A protection cannot be waived (unlike without prejudice negotiations). Therefore, it excluded BJSS's offer letter as protected under s111A Employment Rights Act 1996.
However, the claimant appealed. At the Employment Appeal Tribunal (EAT), it was stated that "the chronological line between what is, and what is not, admissible therefore lies on the point at which the contract is terminated" and it upheld that protection under s111A only applies to pre-termination negotiations.
So, when exactly is the contract terminated?
Paul Burton, Head of Frettens' Employment Team, reports that "The EAT went on to say that "where there is a dispute as to whether ot 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, a Tribunal will need to determine the termination date before any s111A protection can be applied."
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and the Employment team will be happy to discuss it with you.
