Tribunal Can Hear Evidence about "Protected Conversation" in an Unfair Dismissal Case

The idea of "protected conversations" is to allow employers to enter into off-the-record conversations with a view to agreeing the exit of an employee.

The "protected conversation" policy was introduced under s.111A of the Employment Rights Act 2013 and was a flagship policy of the Government's employment reform.

Under the Act, details of these conversations cannot be used in subsequent tribunal proceedings. In theory this sounds like a good idea; employers will be free to discuss exit packages in a full and frank atmosphere without fear of their comment being reported to the tribunal in any subsequent proceedings and prejudicing their case.

However, in a significant ruling by the EAT in Basra v BJSS Ltd it was held that a tribunal can hear evidence about "protected conversations" in an unfair dismissal case if the date of termination is in dispute.

In this case, the claimant wrote an email to the respondent in response to a without prejudice offer letter it had sent saying "today will be the last day at BJSS". The claimant then stopped attending work, and later brought a claim for unfair dismissal.

BJSS argued that the claimant's employment had ended by mutual termination and,in the alternative, the email was a resignation.The claimant denied resigning  and said he had been dismissed by BJSS at a later date.The tribunal argued that s111A protection cannot be waived  and excluded BJSS's offer letter as protected under s111A ERA.

However,the EAT held that as the protection under s111A only applies to pre-termination negotiations," the chronological line between what is,and what is not , admissable therefore lies on the point at which the contract is terminated".The tribunal would not be in a position to say what evidence should be excluded "until that dispute is determined"..

Thus, the tribunal needs to determine the termination date before applying s111A.

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