Scope of protected conversations clarified and limits on tribunal approach to improper conduct

Background

In the case of Tarbuc v Martello Piling Ltd, the claimant was dismissed following a redundancy process after a workplace discussion which the employer characterised as a “protected conversation” under section 111A of the Employment Rights Act 1996. Protected conversations are often used by employers to negotiate exit terms with employees confidentially. Protected conversations are inadmissible in unfair dismissal claims subject to exceptions including improper conduct.

The claimant brought claims for unfair dismissal, unlawful deductions from wages (relating to a bonus), and less favourable treatment as a part-time worker.

At a preliminary hearing, the Employment Tribunal held that the conversation fell within section 111A and that there had been no improper conduct. It therefore excluded all evidence relating to the conversation, directed that related documents need not be disclosed, and required all references to be redacted from the pleadings and bundle.

The claimant appealed, arguing in particular that the Tribunal had applied section 111A too broadly and had failed properly to assess whether the employer’s conduct was “improper”.

EAT decision

The EAT allowed the appeal in part.

In respect of the protected conversation, it confirmed that section 111A protection applies only to ordinary unfair dismissal claims. The Tribunal had erred in excluding the protected conversation evidence from the claimant’s other claims, including unlawful deductions from wages and part-time worker treatment. In cases involving multiple claims, tribunals must “compartmentalise” the evidence, excluding it for unfair dismissal where appropriate but considering it for other claims.

However, the appeal succeeded on the issue of improper conduct. The Tribunal had focused only on what was said during the meeting and how it was expressed. It failed to consider the wider context, including the claimant’s allegation that he had been taken by surprise, not given the opportunity to be accompanied, and effectively “ambushed”. The EAT held that the question of improper conduct requires an assessment of the circumstances in the round. By failing to engage with these elements of the claimant’s case, the Tribunal had erred in law.

The case was remitted to a fresh tribunal to reconsider the issue of improper conduct and proceed on the correct legal basis.

Learning points for employers

This decision acts as a reminder that employers cannot assume protected conversations will be excluded from all claims. Where multiple claims are brought, the same discussion may be admissible for some purposes but not others. This creates evidential complexity and reinforces the need for careful handling of pre-termination discussions.

The decision does not mean that unplanned or unexpected protected conversations will automatically amount to improper conduct. However, the wider circumstances surrounding the discussion may still be relevant. Tribunals are likely to consider the overall context, including the manner in which the meeting was arranged, whether the employee was placed under undue pressure, and whether the process was handled fairly and reasonably in all the circumstances.

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For more information or advice, please get in touch with Ellie Searle in our Employment team.