A limit to the protection of protected conversations?
In the recent case of Basra v BJSS, it was decided that a tribunal can hear evidence of pre-termination negotiations in an unfair dismissal case if the date of termination is in dispute, and that evidence is relevant to determining it.
Statements made in a genuine attempt to settle an existing dispute between employers and employees can attract “without prejudice” protection meaning that evidence of those communications cannot be used in subsequent tribunal or court proceedings unless that privilege is waived. In order for the protection to arise, there must be an existing dispute between the parties.
s111A of the Employment Rights Act 1996 was introduced to allow employers and employees to have confidential discussions about the termination of employment on the basis that such “protected” conversations would be inadmissible in any subsequent claim for unfair dismissal (absent any automatically unfair reason or any improper behaviour during the conversations/negotiations). This allows employers and employees to have frank conversations about the termination of employment in the absence of any existing dispute.
Basra v BJSS
Mr Basra was invited to a disciplinary hearing after his employer began to have concerns about his performance. As an alternative he was also offered a settlement sum ‘without prejudice’, subject to his employment terminating and him signing a settlement agreement.
Mr Basra accepted the offer by email. He brought a claim of unfair dismissal and when the case came to tribunal, the effective date of termination (the EDT) of his employment was in dispute.
The Employment Tribunal decided that the offer to Mr Basra could not be considered because it was a pre-termination negotiation protected by s111A. His acceptance email was, however, admissible, as the scope of pre-termination negotiations ended when he agreed to leave on the proposed terms.
Mr Basra appealed and the EAT allowed his appeal. Where the EDT is in dispute, the Employment Tribunal ought to have considered all available evidence before deciding when the dismissal had, in fact, occurred. This should include evidence of the negotiations about termination.
The EAT went on to state that, where the nature of the termination was in dispute (resignation, dismissal or termination by mutual agreement) but the EDT was agreed, all evidence of pre-termination negotiations should be excluded.
This case serves as a reminder that, whilst protected conversations can be useful particularly in circumstances where there is no existing dispute, there are limitations. Before embarking on settlement discussions, bear in mind that the content of the negotiations may not necessarily be protected should there be a dispute over the date of termination.
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