Protected Conversations

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In Basra v BJSS Ltd the EAT held that, if the date of termination is in dispute, a tribunal can hear evidence about ‘protected conversations’ in an unfair dismissal case.

Under section 111A Employment Rights Act 1996 any pre-termination discussions about settlement that take place between employer and employee before termination of employment are protected and cannot normally be used by either party in an unfair dismissal claim. The EAT ruled in this case that there was an exception as there was a dispute over the date of termination.

An email was written to the Respondent by the Claimant in response to a without prejudice offer letter that had been received. The email stated “today will be the last day at BJSS”. Following this the Claimant ceased coming to work and then brought a case for unfair dismissal. BJSS refuted this and claimed that the Claimant’s employment had ended by mutual agreement or that the email was a resignation. The Claimant denied any such resignation and claimed that he had been dismissed by BJSS. The tribunal excluded BJSS’ offer letter as it was protected under s11A and it held that the s111A protection could not be waived unlike the without prejudice rule.

The EAT stated that “where there is 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 terminated”. Therefore, the true termination date needs to be determined before evidence can be excluded using the s111A protection.

Written by

Lorraine Emery
23rd January 2018