Basra v BJSS Ltd

It is wrong to exclude evidence of pre-termination negotiations before deciding the effective date of termination (EDT) when that date is in dispute. The correct approach is to determine the EDT as a preliminary issue and to consider all evidence relevant to that question, including negotiations that might bear on whether a contract ended on a given date. Only after the EDT is fixed should a tribunal apply the exclusion in Employment Rights Act 1996 s.111A to bar pre-termination negotiations from unfair dismissal proceedings.

This is an appeal from a decision of the London Central Employment Tribunal (Employment Judge Deol) heard on 22 September 2016. The dispute concerned whether the claimant's employment ended on 3 March 2016 or on 15 March 2016 and whether a particular email of 3 March 2016 amounted to a resignation. The Employment Tribunal excluded a without-prejudice offer as inadmissible under Employment Rights Act 1996 s.111A and concluded that the claimant had resigned on 3 March 2016, dismissing his unfair dismissal claim. The Employment Appeal Tribunal allowed the appeal, holding that, where the EDT is contested, the tribunal must first determine that date and may not pre‑emptively exclude evidence under s.111A. The EAT remitted the matter to the same tribunal for reconsideration with directions on admissibility and procedure.

1. Disposition. Appeal allowed. The Employment Tribunal erred in law by excluding pre‑termination negotiations under Employment Rights Act 1996 s.111A before determining the effective date of termination where that date was in dispute. The matter is remitted to the same Tribunal for reconsideration. (See paras [Ground 1] and final disposal.)
2. Preliminary issue principle. Where the effective date of termination (EDT) is contested, the tribunal must determine the EDT as a preliminary question. The tribunal must consider all evidence relevant to that question, including negotiations about termination, before applying s.111A's exclusion. Only once the EDT is fixed does s.111A operate to exclude pre‑termination negotiations from unfair dismissal proceedings. (See the Court's analysis of the scope and timing for applying s.111A.)
3. Scope of s.111A. Section 111A excludes evidence of "pre‑termination negotiations" in "any proceedings on a complaint under section 111". That exclusion therefore extends to preliminary issues arising in an unfair dismissal complaint, including the question whether there was a dismissal at all. The provision may not be waived by agreement between the parties. Exceptions in subsections (3)–(5) are exhaustive. (Court follows and applies the principles developed in [2016] IRLR 839 / Faithorn Farrell Timms.)
4. Procedural fairness. It was procedurally unfair for the Tribunal to decide admissibility under s.111A without inviting submissions on that issue when the parties agreed the material was critical and on its relevance. The Tribunal should have heard submissions before making a determinative exclusion. (See discussion under Ground 2.)
5. Resignation issue. The Tribunal erred in concluding that the 3 March email amounted to an unambiguous resignation without taking account of the without‑prejudice offer and surrounding circumstances. The phrase "subject to contract" and the context of an offer to terminate may affect whether words amount to a final resignation. Accordingly Ground 3 succeeds and the tribunal's factual finding on resignation must be revisited in light of the admissible evidence. (See Ground 3 analysis.)
6. Remittal. The EAT declined to decide the merits itself because more than one outcome was reasonably possible had the Tribunal properly taken the WP offer into account. The case is remitted to the same Tribunal to reconsider the EDT and, following that determination, to apply s.111A for any subsequent unfair dismissal enquiry. The rehearing is to be in person and not on the papers.

• Employment Appeal Tribunal — Appeal allowed; remitted to the Employment Tribunal for reconsideration. Judgment delivered 19 December 2017.
• London Central Employment Tribunal — Original hearing 22 September 2016 (Employment Judge Deol) dismissed the claimant's unfair dismissal claim by finding resignation/termination by agreement on 3 March 2016. That decision was set aside in part by this appeal.