The tribunal focused solely on the manager’s comments made in the meeting itself and failed to consider the broader context, including the employee’s complaint that the meeting was unexpected and that they had not been given the option to be accompanied.
Facts
Mr Tarbuc worked for Martello Piling Limited from February 2018 until his employment ended in June 2024, which the employer said was by reason of redundancy. Before that dismissal, Mr Tarbuc attended a meeting with the company’s managing director, Mr Macklin, at which the proposed redundancy and a potential settlement were discussed. Mr Tarbuc later alleged that he had been pressured into accepting the offer, that the meeting had taken place without prior warning or the chance to be accompanied, and that he had been given only a short period to consider the proposal. After his dismissal, Mr Tarbuc brought claims including unfair dismissal, unlawful deductions from wages and discrimination as a part‑time worker. In response, Martello Piling Limited sought to rely on section 111A of the ERA, which excludes evidence of pre‑termination discussions from unfair dismissal proceedings unless the tribunal considers that there was improper conduct.
The employment tribunal
The employment tribunal accepted the employer’s reliance on section 111A of the ERA, finding that a meeting between Mr Tarbuc and the managing director amounted to a protected conversation. Mr Tarbuc argued that the protection was lost because the managing director’s conduct during the meeting was improper, alleging that he had effectively been threatened with redundancy if he did not accept the proposed exit. The employer disputed that account and pointed out that Mr Tarbuc had not raised any complaint at the time, explaining that the meeting had been intended to avoid the disruption of a formal redundancy process.
On the balance of probabilities, the tribunal preferred the managing director’s evidence and concluded that the alleged threatening comments had not been made. While Mr Tarbuc may have perceived the discussion as a threat, the tribunal held that the test under section 111A(4) was whether the conduct was objectively improper, which it was not. As a result, the statutory protection applied and evidence of the pre‑termination negotiations was inadmissible, requiring all references to the meeting to be removed from the pleadings, witness statements and hearing bundle.
The EAT
The EAT concluded that the tribunal had clearly gone wrong in treating section 111A as applying across all of Mr Tarbuc’s claims. Section 111A ERA only excludes evidence of pre‑termination negotiations in claims for ordinary unfair dismissal under section 111. It does not extend to claims for unlawful deductions from wages or complaints of less favourable treatment under the part‑time workers regime.
The EAT also held that the tribunal had misdirected itself when considering whether there had been ‘improper behaviour’ for the purposes of section 111A ERA. Its analysis was confined to the content and delivery of Mr Macklin’s comments at the meeting, and did not address Mr Tarbuc’s allegations that the meeting took place without warning and that he was refused the chance to be accompanied.
Earlier appellate authority shows that a surprise meeting and the absence of a companion will not necessarily amount to improper behaviour, provided the tribunal has properly weighed all relevant factors. In this instance, that analysis had not been carried out and would need to be reconsidered.
The argument from Mr Tarbuc in relation to the timetable for considering the offer was, however, a red herring. Mr Tarbuc rejected the proposal outright at the meeting, and the letter set out only provisional heads of terms rather than a formal settlement agreement, meaning the Acas guidance recommendation of a ten‑day consideration period was not an issue.
Comment
This decision should not discourage employers from having early, face‑to‑face conversations about potential exits. Difficult issues always have to be raised for the first time, and doing so in person is often more humane – and surely preferable to the alternative of informing someone by email - or worse still by calendar invitation - that you want to have a protected conversation with them about their potential departure from the organisation. The EAT did not suggest that a surprise meeting, or the absence of a companion, will automatically amount to improper conduct, but it does reinforce the need to consider the wider context.
The case is also a reminder of the limits of protection. Section 111A ERA applies only to ordinary unfair dismissal, and pre‑termination discussions may still be admissible elsewhere. Employers should therefore proceed on the basis that what is said may ultimately be scrutinised by the tribunal, and not say anything that they would be concerned about repeating in tribunal. Properly handled, protected conversations remain an important tool which should be used with care, realism and restraint rather than aggression. Apart from the legal considerations, you are much less likely to secure the amicable resolution you are seeking if you take an overly aggressive approach.
