05 January 2018
Pre-termination discussions between employer and employee are protected and cannot usually be referred to by either party in a subsequent unfair dismissal claim.
In early 2016, BJSS Ltd, Mr Basra’s employer, began to have concerns about his performance, and at a meeting BJSS raised these concerns and Mr Basra suggested that he could resign. There then followed a period of negotiations, in the process of which there was dispute about what had been agreed as his termination date. The EAT said that, in a case where the date of termination is agreed but the parties are in dispute as to the nature of the termination (that is, dismissal, resignation or mutual agreement), then although evidence of pre-termination negotiations can be excluded otherwise, where the date of termination was in dispute, evidence of the date could be adduced – thus creating a limited exception to this rule.
The EAT said that where there is a dispute as to whether or not the contract was terminated on a particular date, the tribunal is not in a position to say what evidence should be excluded until that dispute is determined. It did, however, go on to give the view that in a case where the date of termination is agreed but the parties are in dispute as to the nature of the termination (e.g. dismissal, resignation or mutual agreement), then evidence of pre-termination negotiations can be excluded.
This decision illustrates the importance of careful wording in any correspondence relating to termination. The case will now return to the same employment tribunal which will have to re-examine its findings. For more information regarding protected conversations, please contact the Employment Team.