Protected conversations can be waived if a dispute arises over the termination date

23 January 2018

In the recent case of Basra v BJSS Limited, the Employment Appeal Tribunal (‘the EAT’) has ruled that an Employment Tribunal (‘ET’) can hear evidence relating to protected conversations under section 111A of the Employment Rights Act 1996 (‘Section 111A’) if there is a dispute about the effective date of termination.

In this case, on 1 March 2016, BJSS Limited (‘the Company’) sent Mr Basra a letter inviting him to attend a disciplinary hearing on 7 March 2016 following receipt of a number of complaints from clients about his performance. On the same date, the Company sent Mr Basra a second letter marked ‘without prejudice and subject to contract’ which informed Mr Basra that if he wished to avoid going through the disciplinary process, the Company were willing to offer him a financial settlement to leave on agreed terms.

Mr Basra responded to the without prejudice letter by email on 3 March 2016 saying that he would ‘accept the financial offer subject to contract and without prejudice and that today would be his last day at BJSS’. When the terms of the financial offer could not be agreed, Mr Basra expected to return to work on the basis that his acceptance had been ‘subject to contract’. However, the Company had accepted Mr Basra’s email of 3 March to be his resignation with immediate effect.

The parties became engaged in correspondence, which resulted in the Company writing to Mr Basra on 15 March 2016 to state that it was Mr Basra who had decided to leave to avoid a disciplinary hearing. The Company repeated that Mr Basra’s employment had terminated on 3 March 2016 by mutual agreement and he would receive 3 months’ pay by entering into a Settlement Agreement.

Mr Basra subsequently lodged a claim with the ET alleging that his employment had not terminated by mutual agreement and he had been unfairly dismissed. The ET chose to ignore the without prejudice offer on the basis that the conversation could be not waived because it was protected by Section 111A. The ET found that Mr Basra’s email of 3 March 2016 amounted to his resignation and that, despite settlement terms not being reached, this resignation did not fall away. Mr Basra had therefore not been dismissed and his claim failed.

Mr Basra appealed the ET’s decision to the EAT and was successful. The EAT stated that the ET had ‘erred in excluding the without prejudice offer in determining when the effective date of termination was’. Mr Justice Choudhury concluded that ‘the Tribunal was wrong to do so, but only because there was a prior issue to be determined, which was the date of termination’. The EAT also held ‘that the Tribunal had erred in concluding that the acceptance email (without reference to the WP offer) amounted to an unambiguous resignation’. Mr Justice Choudhury has remitted the case back to the original Tribunal for them to re-examine their findings.


This decision is a useful reminder to employers that they need to be careful when corresponding with employees on an open and protected basis at the same time. Employers need to be able to draw a clear line under what is considered an open conversation and what is a protected conversation in order to avoid situations happening such as those outlined in this case. In particular, open correspondence should not be put on hold indefinitely while without prejudice and/or protected conversations are taking place.

By Emily Jones

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