Protected conversations: proceed with caution

The recent Employment Appeal Tribunal (EAT) decision in Tarbuc v Martello Piling Ltd is an important warning for employers who rely on protected conversations under section 111A of the Employment Rights Act 1996 (ERA). While s.111A allows employers to hold confidential pre-termination discussions, it is important that employers are aware that the protection is narrow and can be used only in limited circumstances. The case has highlighted the conditions of s.111A protection and confirms that tribunals must assess ‘improper behaviour’ holistically, not just by looking at specifically what was said in the meeting.

Employers are reminded that labelling a meeting as a ‘protected conversation’ does not guarantee confidentiality, and procedural missteps around notice and accompaniment can unravel an employer’s protection under this provision, and mean that anything said during that meeting (often where employers feel safe to talk openly and frankly) becomes admissible in any subsequent proceedings.

Background

Mr Tarbuc worked for Martello Piling Ltd from 2018 until his redundancy dismissal in June 2024. Prior to the dismissal, the Managing Director held a ‘protected conversation; meeting with him to discuss a redundancy proposal, pointing out issues with his performance and presented ‘heads of terms’ for a potential settlement. Mr Tarbuc complained that:

• the meeting was sprung on him without notice,
• he was not given the opportunity to bring a companion,
• he was told that he would be made redundant if he did not accept the offer, and
• he was given only five days to consider the proposal

he brought claims for unfair dismissal, unauthorised deduction from wages and less favourable treatment as a part-time worker. The employer sought to exclude all evidence of the meeting under s.111A ERA, which protects pre-termination negotiations in ordinary unfair dismissal claims.

The Tribunal’s initial approach

The Employment Tribunal (ET) accepted that the meeting was a protected conversation and found no improper behaviour. The ET therefore ordered that all references to the meeting be excluded from all claims. Mr Tarbuc appeal to the Employment Appeal Tribunal (EAT).

The EAT

The EAT found that s.111A only applies to ordinary unfair dismissal claims and the ET had wrongly excluded evidence from all claims despite s.111A not applying to wage claims, part-time worker detriment, discrimination or whistleblowing claims. It only applies to ordinary unfair dismissal. On this basis, the EAT required the case to be remitted.

In addition, it found that the ET had focused solely on what had been said in the meeting and failed to consider the lack of notice, the ‘ambush’ nature of the meeting and the lack of opportunity to bring a companion. The EAT held that improper behaviour must be assessed holistically and all factors must be considered when assessing improper behaviour under s.111A.

The EAT referred to previous rulings where an ambush meeting did not amount to improper behaviour but only because the ET had carefully considered all relevant circumstances in those cases. It was held that this level of analysis was missing in the ET’s evaluation of whether there had been improper conduct in Tarbuc v Martello Piling Ltd. The EAT also noted that Mr. Tarbuc had rejected the offer outright in the meeting, meaning the five-day period in the letter did not add pressure and was rendered irrelevant. The EAT also took the opportunity to clarify that the ACAS 10-day recommendation applies to formal written settlement agreements but not to preliminary ‘heads of terms’.

Why this matters for employers

This case reinforces several important principles: firstly that protected conversations are not a blanket shield and they only protect ordinary dismissal claims. S.111A cannot provide protection in relation to any other claims. It is therefore very important that employers consider the wider circumstances of the employee, and whether there is scope for the employee to bring claims beyond ordinary unfair dismissal, before proceeding with a ‘protected conversation’. Even if a conversation is protected for the purpose of an unfair dismissal claim, it can still be fully admissible if an employee brings a claim for discrimination, whistleblowing, or wage claims.

Further, it is a reminder to employers that ‘improper behaviour’ is a broad concept, it includes not just what is said at the meeting but how it is arranged and conducted. Meetings that could be interpreted as an ‘ambush’ are not automatically improper, but there is increased risk that in these circumstances s.111A protection will be lost.

Practical Guidance

Tarbuc is a reminder that protected conversations are a useful tool, but only when handled carefully. Employers should ensure that meetings are planned with reasonableness notice, employees are treated fairly, managers understand the limits of s.111A and the process is accurately documented.

If you require further guidance on protected conversations, our Employment Team can offer tailored advice to ensure that protected conversations are legally compliant and do benefit from the protection under s111A.