Protected conversations: when does the protection fall away?

The Employment Appeal Tribunal (EAT) recently provided a useful reminder of the limits of the protection given to “protected conversations” under section 111A of the Employment Rights Act 1996 (ERA) in Tarbuc v Martello Piling Ltd.

Background

The claimant, T, had been employed by Martello Piling Ltd from February 2018 until he was dismissed for redundancy in June 2024.

Before his dismissal, T attended a meeting with the company’s managing director where a settlement proposal was discussed. T alleged that he had been “ambushed” by the meeting without warning, was not given the opportunity to be accompanied, was told he would be at risk of redundancy if he did not accept the offer and was only given five days to consider it.

T was subsequently dismissed and brought claims of unfair dismissal, unauthorised deductions from wages and less favourable treatment for being a part-time worker.

The company relied on section 111A ERA, which states evidence of pre‑termination negotiations is inadmissible in ordinary unfair dismissal proceedings. However, that protection does not apply where there has been “improper behaviour”, as T argued.

Employment Tribunal (ET) decision

The ET held that the content of the meeting did not amount to improper behaviour. It found that the managing director’s approach had been measured. The ET directed that all references to the conversation be excluded from the proceedings.

T appealed to the Employment Appeal Tribunal (EAT).

EAT decision

The EAT partly allowed the appeal and identified two issues with the ET’s approach.

The ET had misapplied section 111A by excluding the pre-termination negotiation evidence in all claims. The statutory protection only applies to claims of ordinary unfair dismissal, not to T’s other claims. The ET therefore erred in excluding the evidence entirely.

The EAT also found that the ET’s approach to the “improper behaviour” was too narrow. It had focused solely on what was said during the meeting and the manner in which it was said, without addressing T’s “ambush” complaint and the fact he had not been given the opportunity to bring a companion.

The EAT confirmed that the assessment of “improper behaviour” requires an evaluation of all relevant circumstances and by failing to do so, the ET had not carried out the required analysis. The issue was remitted to the ET for reconsideration.

The EAT also noted that the five‑day period given to T to consider the settlement proposal was not decisive, as he had rejected the offer at the meeting. The ACAS guidance recommending 10 days to consider a settlement agreement did not directly apply because T had been given only “heads of terms”, not a formal settlement agreement.

What does this mean for employers?

This case serves a reminder that section 111A is not a blanket protection for all claims.

Employers should ensure protected conversations are handled appropriately in both substance and process. In particular, employers should, where possible, give employees reasonable notice of meetings to avoid any sense of “ambushing” them and ensure settlement discussions are conducted in a measured, non‑coercive manner. Failing to do so may risk losing the protection of section 111A and allow the content of those discussions to be relied upon in the ET.

For support and guidance on how to conduct a protected conversation, including what to say and how to present any settlement offer, get in touch with a member of the Gordons Employment Team.