April 2023 Case Law Updates

There has been a flurry of important case law decisions recently. Here our Employment team break down another two of these decisions.

Document marked ‘without prejudice’ was found to be a valid termination letter

Despite being marked ‘without prejudice’, a letter was found to amount as an effective letter of termination for the purposes of an unfair dismissal claim. The Claimant had been signed off as sick for an extended period.

After conversations with the Respondent’s HR representative regarding the possibility of a settlement to leave his position within the company, his employer sent him a letter which he received on 7^th February.  This letter was headed ‘without prejudice’ and stated that there would be a mutual termination of the Claimant’s employment, with his final day being 7^th February.

The letter offered an ex-gratia payment to the Claimant, on the condition that he signed the settlement agreement; the Claimant did not sign this letter. A payment was then made to the Claimant on 14^th February, which he was told reflected his payment in lieu of notice and holiday entitlement. On 19^th June, the Claimant submitted a claim for unfair dismissal.

The Respondent argued that the letter of 7^th February terminated the Claimant’s employment. This was important as, if this was held to be correct, then the Claimant’s claim would have been rendered out of time. The Claimant argued that the letter was simply a ‘without prejudice’ offer and, as he had rejected it, it could not terminate his employment.

In the first instance, the Tribunal held a preliminary hearing to consider whether the claim was out of time. It was considered that the “without prejudice” letter was an effective dismissal letter and the claim was therefore out of time.

The Claimant appealed this decision to the Employment Appeal Tribunal (EAT) however the appeal was dismissed.

It was decided by the EAT that due to the way the letter had been drafted, the Tribunal was entitled to read the letter in two distinct parts: one which openly terminated Mr Meaker’s employment and the other offering a settlement payment subject to agreement.

As this case turned on its own facts then it is important that this is not relied upon as a principle and that notice of termination is sent in open correspondence.

‘Unless Order’ was too punitive

In cases where a party is failing to comply with Tribunal directions, the other party can apply for (or the Tribunal can of its own volition make) an “Unless Order”. Typically, an Unless Order will state that unless the party complies with a direction by a certain date, a claim or response will be struck out.

In Mohammed v Guy’s and St Thomas’ NHS Foundation Trust, the Employment Appeal Tribunal recently addressed the thought process that an Employment Tribunal should follow when making an Unless Order in the context of a claim that included multiple complaints.

Ms Mohammed brought a claim which included complaints of race and disability discrimination. She was originally represented by solicitors, but subsequently, acted on her own.  There had been efforts to have Ms Mohammed identify and particularise her disability discrimination claims, but without success.

The Tribunal eventually ordered that she provide further and better particulars of her claims of direct disability discrimination and discrimination arising from disability and that unless she complied with the order within 7 days, her claim would be struck out in its entirety. She failed to comply with the order and her whole claim (including her complaints of race discrimination) was struck out.

Ms Mohammed appealed to the EAT and the EAT upheld her appeal. The EAT considered that the Tribunal should have limited the strike-out sanction for a breach of the Unless Order to only those elements of her claim that had not been sufficiently particularised. The draconian nature of a strike-out was such that striking out all of the claims without considering a more proportionate sanction was an error of law.

Parties faced with un-cooperative opponents often seek Unless Orders and this case is a useful reminder that, as with other matters in the Tribunal, seeking Unless Orders should be done in a way that is proportionate to the default of the other party. This is because a proportionate order is (a) more likely to be granted and (b) less likely to be overturned on appeal.

Further reading

Employment Law and HR package – Oakwood Solicitors

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