Basra v BJSS Ltd

Section 111A of the Employment Rights Act 1996 cannot be applied until any dispute about the effective date of termination has been determined. Where competing termination dates are advanced, the tribunal must first determine that preliminary issue using all relevant evidence, including negotiations about termination. It may then exclude evidence of negotiations which were pre-termination negotiations before the date found.

Where the termination date is undisputed, however, the statutory protection applies to preliminary issues about whether the termination was a resignation, dismissal or agreed termination. A tribunal must also construe an alleged resignation in its proper admissible context. Wording stated to be subject to contract may prevent a concluded resignation or agreement.

The Claimant was employed as a Technical Architect. After concerns about performance, the Respondent made a without-prejudice, subject-to-contract offer of three months’ net salary in return for immediate termination under a settlement agreement. The Claimant replied that he accepted the offer, also subject to contract and without prejudice, and that the day would be his last at BJSS.

The Employment Tribunal held that the email was an unambiguous resignation on 3 March 2016. It excluded the employer’s offer under section 111A of the Employment Rights Act 1996, notwithstanding both parties’ wish to rely on it, and dismissed the unfair and wrongful dismissal claims.

The Claimant appealed. The central issues were whether the Tribunal could exclude the offer before deciding the effective date of termination, whether it should have heard submissions on admissibility, and whether the email could properly be treated as an unambiguous resignation.

1. Appeal allowed. The Tribunal erred by excluding the employer’s offer under section 111A before deciding whether employment ended on 3 March or 15 March 2016. The statutory exclusion concerns pre-termination negotiations. Where the termination date is disputed, the tribunal must first decide that date on all relevant evidence. Only then can it identify and exclude negotiations preceding the date found.

2. The result differs where the effective date is agreed. Section 111A applies to any proceedings on an ordinary unfair-dismissal complaint, including a preliminary issue whether an undisputed termination was a resignation, dismissal or agreed termination. In that situation, protected negotiations cannot be admitted merely to determine the nature of the termination. The statutory exceptions are confined to those Parliament enacted.

3. The Tribunal also acted unfairly by deciding the important admissibility issue without hearing submissions, although both parties wished to rely on the communications. It should have invited submissions before excluding evidence central to the preliminary issue.

4. The finding of an unambiguous resignation could not stand. The Tribunal wrongly separated the email’s reference to the financial offer from its statement about the Claimant’s last day. In its context, including the offer and the express qualification subject to contract, the email was capable of a different meaning and did not compel a finding that employment ended on 3 March.

5. The EAT could not itself determine the merits because more than one outcome remained possible. Applying Jafri v Lincoln College [2014] ICR 920, it remitted the case to the same Tribunal. Applying the relevant considerations in Sinclair Roche & Temperley v Heard [2004] IRLR 763, the error was not such as to make the decision totally flawed and there was no concern about impartiality or professionalism. The Tribunal must reconsider the termination date using the full evidence and then determine any remaining live issues after applying section 111A.

• Employment Appeal Tribunal: Appeal allowed. The dismissal of the claims was set aside and the matter was remitted to the same Tribunal for reconsideration.
• Employment Tribunal, London Central: Held that the Claimant had not been dismissed because his employment ended by resignation or mutual agreement on 3 March 2016, and dismissed the unfair and wrongful dismissal claims.