By Jo Seery, Professional Support Lawyer
Case Judgement Summary:
Background
Mr Tarbuc was employed by Martello Piling Ltd as an Estimating Engineer. On 23 April 2024 he was called into a meeting by the managing director, Mr Macklin which was referred to as a “protected conversation” meaning a pre-termination negotiation under section 111A of the Employment Rights Act 1996 (‘ERA’). At the meeting Mr Macklin raised issues with Mr Tarbuc about his performance, proposed that he would be at risk of redundancy and made a settlement offer to settle which Mr Tarbuc did not consider.
Decision of the Employment Tribunal
At a preliminary hearing the Employment Tribunal, accepted the employer’s argument that the meeting on 23 April 2024 amounted to a protected conversation. Relying on s. 111A the judge ruled that evidence of pre-termination proceedings is inadmissible and so could not be considered when determining his unfair dismissal claim. It rejected Mr Tarbuc’s argument that he had been subject to improper conduct during the protected conversation namely being ambushed, given no chance to bring a companion, and pressured to engage in settlement discussions.
Mr Tarbuc appealed, arguing that the Tribunal had made an error of law by wrongly applying section 111A to all his claims, including unlawful deductions from wages and less favourable treatment as a part‑time worker. He also argued that the Tribunal had failed to properly consider the ACAS Code when reaching its decision that the employer’s conduct was not improper.
The Decision of the Employment Appeal Tribunal (EAT) - the scope of a protected conversation under s. 111A ERA 1996
The key issue was whether the Tribunal had misapplied section 111A which only protects pre‑termination negotiations in ordinary unfair dismissal claims. The EAT held that the Tribunal was wrong to apply to s. 111A to Mr Tarbuc’s claims for: unlawful deduction from wages and the part-time worker detriment claim.
Accordingly, the EAT held that the Tribunal had erred by excluding all references to the protected conversation from all the documents and refusing Mr Tarbuc’s application for specific disclosure. The EAT recognised that if this was the only ground of appeal that succeeded, it would be difficult for the tribunal to decide which documents remained inadmissible in relation to the unfair dismissal proceedings. However, Mr Tarbuc had also claimed that his selection for redundancy amounted to less favourable treatment because he was a part-time.
The EAT also considered whether the Tribunal should have identified, of its own motion, that Mr Tarbuc was attempting to bring an automatic unfair dismissal claim under section 104 ERA (assertion of a statutory right). It held that although Mr Tarbuc’s claim stated that he had been dismissed after requesting his bonus he had not asserted that the employer had breached any right. This was in contrast to the way his part-time workers claim had been set out. As such the Tribunal had not made an error in failing to include a claim for automatic unfair dismissal under s. 104 ERA 1996.
Improper behaviour
A further issue concerned whether the employer’s conduct meant the conversation should lose its protection under section 111A (4).
The EAT held the Tribunal had erred by only focusing on what was said in the meeting by the Managing Director. Instead, it should have considered the wider context including from Mr Tarbuc’s perspective which was relevant to whether the employer had engaged in improper behaviour under the ACAS Code.
Why this matters
The judgment reinforces that employers cannot use section 111A as a blanket shield to exclude evidence where claims are made in addition to unfair dismissal such as unlawful deduction from wages claims, discrimination claims, detriment claims, or automatic unfair dismissal.
