Protected conversations: scope of protection and assessing improper conduct

The Employment Appeal Tribunal (EAT) has clarified both the limits of protection afforded to pre-termination negotiations under section 111A of the Employment Rights Act 1996 and the approach tribunals should take when considering allegations of improper conduct.

In the case of Tarbuc v Metro Piling, the employee was unexpectedly called to a meeting at which his employer presented him with a settlement proposal and indicated that, if he declined, he would likely rank poorly in any subsequent redundancy exercise. The employer argued that the discussion was a protected pre-termination negotiation and therefore inadmissible in evidence.

The employee brought claims for ordinary unfair dismissal, discrimination as a part-time worker and unlawful deductions from wages. The Employment Tribunal found that there had been no improper conduct during the meeting and ruled that the conversation was inadmissible across all claims.

The EAT overturned that decision on two important grounds.

First, it confirmed that section 111A protection applies only to ordinary unfair dismissal claims. Evidence of a protected conversation may still be admissible in other claims pursued alongside an unfair dismissal claim, such as discrimination or unlawful deduction from wages claims. Tribunals are expected to assess the admissibility of the same evidence separately for different causes of action.

Secondly, the EAT held that the tribunal had taken too narrow an approach when considering whether there had been improper conduct. Rather than focusing solely on what was said during the meeting and the manner in which it was said, the tribunal should have considered all the surrounding circumstances. This included the employee’s complaints that he had been ambushed with the meeting, given no prior warning and denied the opportunity to be accompanied.

The case has been remitted to a differently constituted tribunal to reconsider the issue of improper conduct.

Conclusion

This decision serves as a useful reminder that protected conversations do not create a blanket shield against admissibility in all employment claims. Employers should also take care when arranging settlement discussions, ensuring that the process as well as the content of the conversation is handled fairly and appropriately.

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