When is a protected conversation not protected?

Protected conversations are intended to remain confidential and away from scrutiny of the tribunals but when considering the case of Basra v BJSS Ltd, the Employment Appeal Tribunal determined that in certain circumstances, the exclusion will not apply.

Background

Section 111A of the Employment Rights Act 1996 (ERA) allows employers to open discussions with employees that relate to the possible termination of their employment whilst protecting those discussions from the scrutiny of the employment tribunals. Further, unlike in without prejudice discussions, there is no requirement under the protected conversation process for a prior dispute to exist before such conversations can commence.

The exclusion provided by s111A only extends to unfair dismissal and, as determined by the Employment Appeal Tribunal in the case of Faithorn Farrell Timms LLP v Bailey, the protection is absolute and cannot be waived by the consent of the parties to litigation. Consequently and in line with that decision, the parties should not even make reference to the fact that such discussions have even taken place.

It was against this background that the Basra v BJSS Ltd was considered.

Facts

Mr Basra was employed by BJSS between September 2013 and March 2016. In early 2016 BJSS had concerns over Mr Basra's performance and informed him during a meeting that he could resign, although no pressure was placed on him to do so. On 1 March 2016 he received two letters, the first invited him to attend a disciplinary hearing and the second offered him three months' notice, his immediate termination and the completion of a settlement agreement. The letter was marked without prejudice and subject to contract and stated that the offer should be accepted prior to the scheduled disciplinary hearing, in the absence of which the offer would be withdrawn.

On 3 March 2016 Mr Basra responded to accept the offer and said: "I accept BJSS's three month notice offer subject to contract and without prejudice; today will be the last day at BJSS". He instructed solicitors who informed BJSS that Mr Basra was signed off with stress and would not attend the disciplinary hearing. The settlement agreement was not signed. By letter of 15 March 2016 BJSS wrote to confirm that Mr Basra's employment had been terminated by mutual agreement on 3 March 2016.

Mr Basra presented a claim in the employment tribunal for unfair dismissal stating that he had been dismissed on 15 March 2016. BJSS responded to deny the claim and relied on the agreement that it said was reached on 3 March 2016, and cited the offer from BJSS and Mr Basra's acceptance.

The employment tribunal concluded that the only relevant document was the letter from Mr Basra of 3 March in which he effectively resigned and held that such resignation could not be set aside in the absence of agreement on the terms of a settlement. The tribunal determined that as a consequence of the rules under s111A it could not look back any further than the resignation.

Mr Basra appealed to the EAT claiming that where the date of termination and the reason for the termination were both in dispute, the tribunal was required to consider the nature of those discussions.

Decision

The EAT upheld the appeal and found that the tribunal could not determine which elements of the evidence should be excluded under s111A until such time as the question of nature of the termination and the date of such termination are identified. Where both are disputed, the exclusion will not apply.

Comment

The final outcome is unknown as the matter was remitted to the employment tribunal for further consideration. However, the case shows that an employer cannot rely on s111A where the nature of the dismissal and effective date of termination are both in question. The parties should therefore be very clear in their communications and, where there is any doubt as to the nature of the dismissal, should proceed without reliance on the terms of the protected discussion.