Hello and thank you for joining us again for your weekly case law update. In case you missed it, our newsletter for March can be found here and had features on strike action, national minimum wage rates and an employee who was described as a pain in the arse!

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In our last update we looked at CCTV and unwanted physical conduct, including how this related to an unfair dismissal claim. This week we are going to be looking at unfair dismissal and without prejudice correspondence.


Case of the Week – Meaker v Cyxtera Technology UK Limited

Mr Meaker, the Claimant, had been employed with Cyxtera Technology UK Limited, the Respondent, in a heavy manual night role. Following injuries to his back in 2016 and 2018 he was signed off sick for an extended period. After a certain point it was agreed that the injuries were likely to be permanent and he no longer had the capability to perform his work, with his employer looking to find a suitable replacement.

Speaking to their HR department on the 20th January 2020 the Claimant believed that further enquiries would be made about alternative employment. However, to the Claimant’s surprise, on the 7th February he received a letter headed ‘without prejudice’ stating they had agreed on a mutual termination of employment, a date which would be considered his last day of employment, details of final amounts of salary and holiday pay, and a settlement agreement.

The Claimant, who had not agreed to a termination in open or without prejudice correspondence, commenced an employment tribunal claim. However this claim was presented on 19th June more than three months after the letter received on 7th February. The Claimant appealed on three grounds:

  1. That the Tribunal had failed to consider the relevant contractual termination date.
  2. That the letter headed without prejudice could not be seen as amounting to a dismissal.
  3. The circumstances in question had not been considered in determining additional time for the claim to be brought.

The first point was effectively stating that despite the letter claiming to amount to a dismissal taking effect on the 7th of February, the Tribunal should have instead looked to the provisions in the contract of employment to decide the notice required and set the Effective Date of Termination from there. This would mean there would be a later date of termination.  Considering past case law and the potential to cause uncertainty and confusion going forward, the Tribunal held that the correct termination date would be 7th February, as it was consistent with s.97 of the Employment Rights Act 1996 and with the practical example of when the employee would no longer expect to turn up to work.

The Employment Appeals Tribunal found that, in relation to the without prejudice letter, the letter could be split into different parts depending on the nature of that part. It was found that, when read as a whole, the letter contained sufficient information (words amounting to dismissal, date of dismissal, and final amounts in relation to salary and holiday pay) to amount to a dismissal.

While a figure was given as part of the settlement agreement process, along with a draft agreement and certificate of legal advice, this was found to have been made without prejudice and, as such, the header would only apply to this portion of the letter. It did not matter that on the face of the letter, the entirety would appear to be without prejudice, nor that the letter referred to a mutually agreed termination, was deemed sufficiently clear so that objectively a reasonable employee would have read the letter as a dismissal in all the circumstances.

The third and final point considered whether it was reasonable for additional time to be granted to allow the claim to be filed. The Tribunal found that, in light of the findings that the letter sent on the 7th February amounted to a dismissal, which were confirmed by the payments made into the Claimant’s account in the days following, the Claimant considered the EDT and knew that the claim was at risk if he did not present it in time. There was no suggestion that there were any other reasons that he could not present the claim in time.

The appeal failed on all three grounds and was dismissed.

The Takeaway Point

In this case, we can see the importance of knowing the rules before you start the process. It was probably not ideal for the Respondent to have to stand up in front of the EAT and argue which bits of their supposedly without prejudice letter would constitute a dismissal and which bits were a genuine attempt to offer a settlement.

Highlighting the importance of careful drafting, separating open and without prejudice correspondence, this could have avoided both the confusion by the employee, on whether they were being dismissed or not, as well as keeping their privileged documents out of the Tribunal’s consideration.

This is also a great moment to point out the strict time limits when it comes to bringing claims, as the Tribunal are strict at enforcing these, ensuring you are aware of the rules can help prevent issues like this from arising in the future.