For many employers, a ‘protected conversation’ feels like a safe way to raise a difficult subject. It allows an employer to propose, off the record, that an employee leaves the business on agreed terms, usually through a settlement agreement, without that discussion being used as evidence if the employee later brings an unfair dismissal claim. The protection comes from section 111A of the Employment Rights Act 1996, and used properly it can be a genuinely helpful tool. A recent Employment Appeal Tribunal (EAT) decision, Tarbuc v Martello Piling Ltd, is a reminder that this protection is narrower, and more conditional, than many employers assume, and that the way a conversation is set up matters as much as what is said in it.
The case
Mr Tarbuc had worked for Martello Piling Limited as an Estimating Engineer since February 2018. In April 2024, following a dispute over an unpaid contractual bonus, the company’s managing director called him into an unscheduled meeting. He was given no advance notice and no opportunity to arrange for a colleague or representative to attend with him. Mr Tarbuc’s account was that he was told a redundancy process might follow, that he was guaranteed to come last in any scoring exercise, and that he was presented with a settlement proposal to leave the business on that basis. The managing director’s account of what was said was less stark, and the tribunal ultimately preferred his version of events. Mr Tarbuc rejected the offer and was made redundant less than two months later.
He went on to bring claims for unfair dismissal, unlawful deduction from wages relating to his bonus, and less favourable treatment as a part-time worker. His argument was that the April meeting should not be protected at all, because the way it had been sprung on him, without warning and without a companion, amounted to improper conduct.
At a preliminary hearing, the employment tribunal disagreed. It found that the meeting fell within section 111A and, having considered what the managing director had actually said and how he said it, concluded there had been no improper conduct. On that basis, it directed that every reference to the meeting be removed from the pleadings, the evidence bundle and the witness statements, across all three of Mr Tarbuc’s claims rather than just the unfair dismissal claim. Mr Tarbuc appealed.
What the Employment Appeal Tribunal decided
The EAT allowed the appeal on two important points, each of which carries a distinct lesson for employers.
The first concerns the reach of the protection itself. Section 111A only applies to ordinary unfair dismissal claims. It offers no protection where an employee brings other claims alongside it, such as unlawful deduction from wages or part-time worker discrimination, even where those claims arise from the same set of facts. The tribunal had therefore been wrong to apply it across the board, a point the employer accepted on appeal. In practice, the content of a protected conversation can be kept out of the unfair dismissal claim while still being put before the tribunal for the other claims running alongside it. For Mr Tarbuc, that means the April meeting now has to be disclosed and can be relied upon for his wages and part-time worker claims.
The second, and more significant, lesson concerns how a tribunal should decide whether a protected conversation has lost its protection through improper conduct. The employment tribunal had reached its conclusion by looking solely at what the managing director said in the meeting and the manner in which he said it. However, the EAT regarded this as too narrow an approach. A tribunal assessing improper conduct must look at the full circumstances, including how the meeting came about in the first place. Here, that meant dealing with Mr Tarbuc’s specific complaints that he had effectively been ambushed with no warning and had not been given the opportunity to bring a colleague along for support. Although he had raised these points clearly in his evidence, the tribunal’s reasons made no mention of them, so the EAT could not be satisfied they had been properly considered. The EAT did not decide that the meeting was improper. It sent that question back to the employment tribunal, to be heard by a different judge and decided afresh in light of the full circumstances.
Why this matters for employers
This decision is important on two fronts. First, a protected conversation is not the all-purpose shield some employers assume it to be. Its protection is confined strictly to ordinary unfair dismissal claims. Where an employee also brings, or might reasonably bring, a discrimination claim, a wages claim or another type of claim connected to the same events, what was said in that conversation may still be put before a tribunal, whatever the employee was told at the time about the discussion being off the record.
Second, employers cannot assume a conversation will stay protected simply because the words used were reasonable and measured. A tribunal weighing up whether conduct was improper is entitled, and required, to look beyond what was said and understand the context. How the meeting was arranged, whether the employee had any real choice about attending, whether they were given the opportunity to bring support, and how much time they were given to consider what was put to them are all part of that picture. An employer who gets the tone of the conversation exactly right, as the tribunal originally found Martello Piling’s managing director had done, can still find that the process around it undermines the protection they were relying on.
Practical steps for employers
Before holding a protected conversation, it is worth pausing to think not just about what will be said, but about how the meeting will be set up. Acas publishes a Code of Practice on settlement agreements, and while failing to follow it does not in itself make an employer liable, employment tribunals will take it into account. The Code says that discussions should take place at an agreed time and place, that allowing the employee to be accompanied by a work colleague or trade union representative is good practice, and that the employee should be given a minimum of ten calendar days to consider any formal written terms. Following that approach will materially reduce the risk of a tribunal later finding that the process itself was improper, regardless of what was said in the room.
For employers without an in-house HR team, these conversations can feel daunting, and it is easy for a manager to raise the subject on the spur of the moment, particularly when tensions are already running high, as they were over Mr Tarbuc’s bonus. That is exactly the point at which taking advice beforehand pays off. Keeping a clear note of how the meeting was arranged and what was offered can also help if the process is ever questioned.
It is also worth remembering that this protection was never intended to cover every type of claim an employee might bring. Where a departure could plausibly give rise to more than one type of claim, such as a dismissal that also touches on part-time status, disability or unpaid wages, it is sensible to assume that the discussion could end up before a tribunal, and to plan the conversation with that in mind.
If you plan to hold a protected conversation with an employee, or are currently facing a claim where one has taken place, our employment team are here to talk through your situation and help you navigate the process.
