Communicating dismissal in ‘without prejudice’ correspondence
You might think that it would be tricky for an employer to dismiss an employee without meaning to. A recent Employment Appeal Tribunal decision highlights the importance of careful drafting when making offers of settlement to an employee.
In Meaker v Cyxtera Technology UK, Mr Meaker’s employer sent him a letter on 5 February 2020 which was marked ‘without prejudice’. The letter said there would be a mutual termination of Mr Meaker’s employment on 7 February 2020. No agreement had actually been reached with Mr Meaker. The letter went on to make an offer of an ex gratia payment to the employee if he signed a settlement agreement. Mr Meaker did not sign the settlement agreement.
The Employment Appeal Tribunal held that this letter was a dismissal letter and that the employee’s employment ended on 7 February. The fact that the employee did not sign the settlement agreement did not change this.
Ironically, in this case, something which was obviously an error on the part of the employer actually helped them, as an effective date of termination of 7 February meant that the employee’s unfair dismissal claim was out of time. However, it is a reminder to employers of the need for careful drafting when making offers of settlement to an employee. A dismissal in the manner set out in the letter of 5 February would undoubtedly have been unfair. If the full offer (including termination of employment) had been stated to be conditional upon the signing of a settlement agreement then, if the offer had not been taken up, the employer would still have had the possibility of dealing with dismissal openly (and fairly).
Adrian Fryer, Partner & Head of Employment
t: 0151 224 0539