Protected conversations

A recent employment appeal tribunal (EAT) judgment serves as a useful reminder of the care that needs to be taken when conducting ‘protected conversations’.

As most employers are aware, s111A of the Employment Rights Act 1996 introduced a mechanism by which employers could approach employees and propose termination of employment by way of a settlement agreement. Where properly conducted, and if settlement is not reached, the law affords protection from disclosure of the conversation in later court or employment tribunal (ET) proceedings. However, the protection is not unlimited, must be conducted correctly and only relates to unfair dismissal proceedings.

Dismissed following a redundancy process

In the case of Mr L Tarbuc v Martello Piling Ltd, Mr Tarbuc was dismissed following a redundancy process and brought claims for unfair dismissal, unlawful deductions from wages and less favourable treatment as a part-time worker.

No prior warning of conversation

Prior to dismissal as part of the redundancy process, the employer held a meeting with him that was intended to be a protected conversation. However, he was called to the meeting without knowing what it was about beforehand, presented with the settlement offer and informed that he was unlikely to be successful in the redundancy process.

Way the conversation was conducted

In his claims to the ET, Mr Tarbuc sought to have the content of the protected disclosure conversation and the way they were put to him disclosed as part of the ET case. He sought to argue that there had been improper conduct in the way the conversation was conducted by his employer. However, the ET ruled that section 111A applied and ordered that the content of the discussion be excluded from the proceedings.

ET had erred

Mr Tarbuc appealed the ET decision and the employment appeal tribunal (EAT) allowed the appeal in part. First, it confirmed that section 111A protection applies only to ordinary unfair dismissal claims. As such, it found that the ET had erred by excluding evidence of the protected conversation from Mr Tarbuc’s unlawful deduction and part-time worker claims. Evidence of pre-termination negotiations remains admissible in claims other than ordinary unfair dismissal unless another evidential rule applies.

Ambushed

Secondly, the EAT held that the ET had taken too narrow an approach when considering whether there had been ‘improper conduct’ under section 111A(4). The ET focused largely on what was said during the meeting itself and whether any threats had been made. However, it failed to consider the wider circumstances, including Mr Tarbuc’s allegation that he had been ‘ambushed’ by an unexpected meeting, was not given the opportunity to be accompanied, and was afforded little time to consider the proposal. These factors were potentially relevant to whether the employer’s conduct was improper and should have been assessed in a more holistic and general sense.

The case was remitted back to the ET following the successful appeal.

Advice to schools and academies

Protected conversations should be conducted carefully, with reasonable notice, sufficient time for consideration, and without undue pressure. We often advise our clients to check whether the employee has a union representative to hold the conversation with, in place of the employee, because they will be familiar with the rules of how conversations are conducted too.

The case also reminds us that section 111A protection is claim-specific and cannot be relied upon to exclude evidence in claims such as unlawful deductions from wages, discrimination, whistleblowing or other statutory claims.

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