A recent case of Tarbuc v Martello Piling Ltd considered the issue of protected conversations improper conduct and “ambush” without prejudice” meetings, which employers have historically relied upon to be protected under s111A of the Employment Rights Act 1996.
The facts of the case
Mr Tarbuc was employed by Martello Piling Ltd as an Estimating Engineer. The Managing Director of Martello Piling held an unexpected meeting with Mr Tarbuc which was labelled as a “protected conversation”. At this meeting, a settlement offer was made to Mr Tarbuc.
The alternative presented to Mr Tabuc was that a redundancy process would be followed. The Managing Director made clear that if this process became necessary, Mr Tarbuc was likely to come last in the scoring system and be made redundant in any event. Following his dismissal, Mr Tarbuc brought claims for unfair dismissal, unlawful deductions and less favourable treatment as a part-time worker.
The first instance employment tribunal decision held that s111A of the ERA 1996 applied, that Martello Piling’s conduct was not considered “improper”, meaning that all references to the conversation must be redacted from Mr Tarbuc’s evidence.
The appeal
Mr Tarbuc appealed. The appeal was upheld in part by Judge Stout at the EAT and it was held;
- the tribunal erred in applying section 111A to all the claims. Section 111A renders pre-termination negotiations inadmissible only in ordinary unfair dismissal proceedings. For other claims, such as those of discrimination and whistleblowing, s111A will not apply and evidence from these purportedly “protected conversations” is permitted and should be considered by the tribunal. This involves an “analytical compartmentalisation” which is regular practice for the tribunal and also applies in this instance.
- the tribunal had also erred when finding that no improper conduct had occurred. It had only considered what the Managing Director had said and how he said it. No consideration was made regarding the way the meeting was called (without warning, amounting to an “ambush”, and with no clarity beforehand on the nature of the meeting), or the denial of Mr Tarbuc’s right to bring a companion. The circumstances of the meeting should have been considered as a whole.
The case was remitted to a differently constituted tribunal to consider further the matter of improper conduct.
Going forward
The outcome of the Tarbuc appeal establishes that employers must consider that discussions under s111A are not protected for claims outside of ordinary unfair dismissal, and that comments made during this meeting can be used as evidence in discrimination, whistleblowing and other proceedings.
Impropriety may be found when considering the meeting as a whole. If an employee is informed that their role may be terminated, they should be forewarned of the nature of the meeting, afforded the opportunity to bring a companion, and a settlement agreement should not be presented to the employee as their only option.
Tarbuc reinforces the principle that whilst s111A can provide certain protections, it does not give an employer the ability to behave unfairly – improperly – under the guise of a “protected conversation”, particularly if the employee is, or could, allege claims outside of the scope of ordinary unfair dismissal.
