The case is a timely reminder that how a protected conversation is arranged and conducted can be just as important as what is said during it.
The Claimant’s employment was to be terminated on the grounds of redundancy, following a dispute about payment of a contractual bonus. Before the termination, the Respondent unexpectedly invited the Claimant to a meeting. The Respondent intended the meeting to be protected by section 111A of ERA 1996 and presented him with a settlement proposal.
The Claimant alleged that he had been ambushed and was denied the opportunity to have a companion present and threatened with redundancy when the meeting took place. He argued that these factors amounted to “improper behaviour” under section 111A(4), meaning the statutory protection under section 111A of the ERA 1996 should not apply.
The Employment Tribunal disagreed. It ruled that section 111A of the ERA 1996 applied and that the conversation was protected. As a result, documents relating to it did not need to be disclosed. References to the conversation also had to be redacted from the pleadings and the hearing bundle.
The EAT took a more nuanced approach.
The Claimant appealed on three grounds. Firstly, he argued that the Employment Tribunal had applied section 111A of the ERA 1996 too broadly. In his view, the Tribunal had treated the protected conversation as inadmissible across all of his claims. It had not recognised that the statutory protection is limited to ordinary unfair dismissal claims. In particular, he argued that his unpaid wages claim, part-time worker claim and proposed automatic unfair dismissal claim under section 104 of the ERA 1996 were not caught by section 111A.
Secondly, the Claimant argued that the Tribunal had failed to properly consider the ACAS Code of Practice on settlement agreements. This was relevant when deciding whether there had been improper behaviour. He relied on the overall circumstances, including being approached unexpectedly, not being given sufficient time to arrange a companion and being given only a short period to consider the offer.
Thirdly, he argued that the Tribunal’s finding that Mr Macklin had taken advice before the meeting and clearly followed it was unsupported by the evidence and was therefore perverse.
Section 111A of the ERA 1996 provides that evidence of pre-termination negotiations is inadmissible in ordinary unfair dismissal proceedings. In practical terms, this allows employers and employees to explore settlement discussions before employment ends without those discussions automatically being relied on in a later ordinary unfair dismissal claim.
However, the protection is subject to important exceptions. Claims that relate to automatically unfair reason for dismissal such as whistleblowing, trade union membership or asserting a statutory right are not covered by provisions set out in section 111A.
Section 104 of the ERA 1996 protects employers from being dismissed for asserting a statutory employment right. If an employer dismisses an employer or worker in retaliation for bringing a claim or alleging a rights infringement, the dismissal is automatically unfair. The employee does not need to prove that the right actually existed or was infringed, provided they made the alleged statutory right reasonably clear to the employer.
The EAT confirmed a point that is often overlooked by many employers.
Section 111A protects pre-termination negotiations only in claims for ordinary unfair dismissal. It does not extend to many other employment claims, including:
Where multiple claims are brought, tribunals may have to consider the same conversation for some claims while disregarding it for others.
For employers, this means that a protected conversation may still become central evidence in litigation. That can happen even where section 111A applies to the ordinary unfair dismissal claim.
Perhaps the most significant aspect of the EAT decision concerns improper behaviour.
The EAT held that the Tribunal had focused too narrowly on the words used during the meeting itself. Instead, it should have assessed the overall circumstances surrounding the discussion.
Relevant considerations included:
The EAT stopped short of saying that an unannounced meeting, or a failure to allow a companion, will automatically amount to improper behaviour. However, these factors must be considered collectively when deciding whether the statutory protection should be lost.
This decision provides several practical reminders.
The decision in Tarbuc v Martello Piling Ltd demonstrates that section 111A remains a valuable mechanism for resolving workplace disputes, but it is not an absolute privilege.
Employers should think beyond simply calling a meeting a “protected conversation”. A carefully planned, fair and measured process is far more likely to preserve the protection Parliament intended, while reducing the risk of litigation over admissibility before the substantive dispute is even heard.
© 2026 BTO Solicitors LLP | V.A.T. No: 260371482 | All rights reserved.
Stay informed
