In Tarbuc v Martello Piling Ltd, Mr Tarbuc was employed as an estimating engineer.

On 23 April 2024, the employer’s Managing Director called Mr Tarbuc to a meeting and raised the possibility of him leaving the business under proposed exit terms. The employer intended this meeting to be a “protected conversation” under section 111A Employment Rights Act (ERA) 1996. Mr Tarbuc was given no notice of the meeting. Mr Tarbuc refused the offer and was dismissed in June 2024, purportedly for redundancy. Mr Tarbuc alleged that he had been threatened with redundancy if the offer was refused, which the employer denied.

Mr Tarbuc brought employment tribunal ("ET") claims for ordinary unfair dismissal, unlawful deduction from wages and less favourable treatment as a part‑time worker. At a preliminary hearing, he sought to rely on the meeting on 23 April 2024 as evidence in his claims. The employer argued that the meeting was a “protected conversation” under section 111A ERA 1996 and therefore the evidence relating to the meeting was inadmissible. 

The concept of protected conversations (aka “pre termination negotiations”), is to allow employers the possibility of exploring with an employee the mutual termination of their employment (in return for a financial payment via a settlement agreement) without fear of anything said by the employers being used against them should negotiations breakdown and a tribunal claim be raised. The default position under S.111A is that evidence of pre-terminations discussions is not admissible in any ordinary unfair dismissal claim. However, if anything said or done during such discussions amounts to improper behaviour, the negotiations will be admissible to the extent that the ET considers just. 

Examples of improper behaviour are given in the ACAS Code of Practice on Settlement Agreements (“the Code”) and include harassment, bullying and placing undue pressure on an employee, e.g. by suggesting that dismissal is inevitable if agreement cannot be reached. The Code also states that “The parties may find it helpful to discuss proposals face-to-face and any such meeting should be at an agreed time and place. Whilst not a legal requirement, employers should allow employees to be accompanied at the meeting by a work colleague, trade union official or trade union representative.”

At a preliminary hearing, the ET held that the employer’s conduct was not improper and that the meeting between the Managing Director and Mr Tarbuc was protected under section 111A. It ordered that all evidence of the meeting be excluded across all claims. The ET preferred the employer’s evidence about what was said in the meeting and found no threats or undue pressure. Mr Tarbuc appealed. 

The EAT had to consider the following issues:

  • does the rule in section 111A preventing protected conversations from being admissible before a tribunal only apply to unfair dismissal claims, or also to other claims such as unlawful deductions and part‑time worker claims? 
  • improper conduct – had the ET correctly considered whether the employer’s conduct was improper?

The EAT held (by agreement between the parties) that the ET had erred in law by treating section 111A as applying to all claims. Section 111A protection is confined to ordinary unfair dismissal and does not apply to claims such as unlawful deductions from wages or less favourable treatment under the Part‑Time Workers Regulations. Evidence of the conversation should therefore have remained admissible for those claims.

Secondly, the EAT found that the ET had failed to fully assess whether there was “improper conduct”. Whilst the ET focused on what was said in the meeting, it did not consider the broader context – including allegations that Mr Tarbuc was ambushed, given no opportunity to be accompanied to the meeting and put under pressure. These matters needed to be assessed “in the round”, in line with the Acas Code of Practice. The EAT directed that the issue of improper conduct must therefore be reconsidered by the ET.

This case is a useful reminder that any protected conversation can only apply to ordinary unfair dismissal claims. If the employee alleges any other claims at ET, then the discussion may be disclosable and admissible for those claims. Whilst the ET should disregard any such evidence for the purposes of determining an ordinary unfair dismissal claim, employers should be aware the discussions may still be heard in a public forum. The safest position for employers is to carefully consider the Code when holding such conversations, take legal advice and assume that any pre termination negotiations may be admissible in any tribunal claim which may follow.