Protected conversations – Section 111A Employment Rights Act 1996
Protected conversations commonly allow employers and employees to discuss ending employment on agreed terms, without the worry of those discussions being used later in ordinary unfair dismissal claims. This is because a protected conversation, if carried out properly, attracts unique protection under Section 111A of the Employment Rights Act, preventing either party from using the content of that discussion as admissible evidence within employment tribunal proceedings.
Protected conversations can therefore assist in negotiating even the most of sensitive exits cleanly, quickly and confidentially, whilst simultaneously avoiding liability for ordinary unfair dismissal claims. However, protection under Section 111A of the Act is somewhat narrow in scope and can be lost entirely if a finding of ‘improper behaviour’ during the protected conversation is made.
The consequences of such a finding being made against an employer was recently highlighted by the tribunal within the case of Tarbuc v Martello Piling Ltd.
Case summary – Tarbuc v Martello Piling Ltd
Tarbuc was employed by Martello Piling Ltd from February 2018 until his dismissal in June 2024, which purportedly took place due to redundancy.
Prior to being dismissed in June 2024, Martello Piling Ltd held a meeting with Tarbuc to discuss the proposed redundancy. A settlement agreement was also offered to Turbac on the basis that he would agree to the termination of his employment on agreed terms as an alternative to the redundancy process continuing.
However, rather than offering a settlement agreement as an alternative to potentially being made redundancy, Turbac complained that Martello Piling Ltd had threatened him with redundancy in the event that he refused the settlement offer. Turbac also complained that he had been called into the meeting without any prior notice, which also meant that he had not been offered the opportunity to bring a companion. Against key ACAS guidance on settlement agreements, Turbac was also only offered five days to consider the settlement offer compared to the recommended minimum of 10 calendar days. Turbac subsequently lodged claims at the employment tribunal, including a claim of unfair dismissal.
Despite Martello Piling Ltd arguing that its conversation with Turbac was protected and could therefore not be relied upon for the purposes of an unfair dismissal claim, the employment appeal tribunal overturned the tribunal’s original decision that its conduct was did not constitute improper behaviour. The employment appeal tribunal held that the tribunal had erred in not considering the cumulative impact of Martello Piling Ltd’s behaviour on Turbac, rather than solely considering the content and delivery of comments made during the meeting.
The case will now be remitted to a new Judge for analysis as to whether the improper conduct threshold has been met.
Practical takeaways for employers, employees and HR professionals
Where possible, protected conversations should be treated as a structured process rather than an off-the-cuff chat. The following points will help preserve the protection afforded under Section 111A and reduce litigation risk:
Be clear on scope:
Use Section 111A to explore agreed exits in potential ordinary unfair dismissal scenarios. Do not assume it will otherwise protect against a wider remit of claims, including in respect of discrimination, whistleblowing or automatic unfair dismissal claims.
Avoid improper behaviour:
Do not threaten dismissal as a foregone conclusion, apply undue pressure, set unrealistically short deadlines, or act in a way that could be construed as bullying, harassment or discriminatory. Allow reasonable time for the employee to consider the offer and obtain independent legal advice.
Keep the process fair:
Although Section 111A does not import full disciplinary procedure requirements, unreasonable processes can support an allegation of improper behaviour. Take a measured approach that aligns with the ACAS Code where possible.
Record-keeping:
Keep concise, neutral notes of the approach and ensure any written offer is carefully drafted and appropriately labelled. Avoid unnecessary detail or language that suggests pre-determination of dismissal prior to any formal process being commenced or concluding.
Timing:
Do not automatically use protected conversations to short-circuit ongoing formal processes where this could potentially be construed as unfair. Consider pausing internal procedures by agreement if negotiations commence, but only where deemed appropriate.
Should you find yourself needing expert guidance or support regarding protected conversations, or if you would like to discuss anything raised in this blog, a member of our specialist employment team would be happy to help.
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