The Employment Appeal Tribunal’s decision in Tarbuc v Martello Piling Ltd [2026] EAT58 is a cautionary tale about how to manage ‘protected conversations’ under section 111A of the Employment Rights Act 1996 (‘ERA’). This article will discuss the existing law regarding protected conversations and the practical takeaways of this decision for employers.

The Law

Section 111A of the ERA allows an employer to commence an off the record discussion with an employee regarding a potential exit even where there is no formal dispute between the parties. Typically, such conversations may arise when there is likely to be a protracted capability or redundancy process and settlement may allow both parties to reach an appropriate compromise and expedite the process.

The underlying logic of this law is to allow employers to initiate settlement conversations at an early stage without the fear that an employee could later refer to such conversations during tribunal proceedings. However, section 111A(4) of the ERA means that the content of such conversations may be admissible in tribunal proceedings if the employee proves that the employer acted improperly.

The Facts

Mr Tarbuc was employed by Martello Piling Ltd (MPL)as an engineer. On 23 April 2024, MPL’s managing director invited him to a meeting which he labelled a ‘protected conversation’. At this meeting, Mr Tarbuc alleged that MPL made a settlement offer to him, making it clear that if he did not accept it, he would be made redundant. When he did not accept, the employer dismissed him on 13 June 2024.

Following his dismissal, Mr Tarbuc brought claims for unfair dismissal, unlawful deduction from wages and less favourable treatment as a part-time worker. The employer argued that the discussions were inadmissible because they were protected under section 111A. Mr Tarbuc argued that MPL had ambushed him by inviting him to the meeting without reasonable notice and that this constituted improper conduct.

At first instance, the employment tribunal ruled that the conversation was protected in its entirety under section 111A and that there was no improper conduct. However, Mr Tarbuc appealed to the Employment Appeal Tribunal (EAT) who eventually overturned the decision.

The EAT decision

The EAT noted that section 111A only applies to unfair dismissal claims and the judge therefore erred when she directed that the evidence of the protected conversation should be excluded in its entirety.

In addition, the EAT concluded that the tribunal had erred in its approach to the question of improper conduct by failing to consider the wider circumstances, including the lack of notice and the failure to allow a companion, rather than focusing solely on the content of the meeting.

Key takeaways for employers

This case reinforces the importance of following a fair process from the outset even when considering settlement and to train managers to ensure that they understand how to conduct a protected conversation. This will avoid the risk of line managers mishandling a protected conversation and inadvertently opening the conversation up to scrutiny during future tribunal proceedings.

Therefore, before commencing a protected conversation, it is crucial to allow employees sufficient advance notice before inviting them to a meeting and to simultaneously offer them the opportunity to bring a companion. Employers should also be clear in any correspondence prior to the protected conversation that the meeting will be held under section 111A of the ERA and on a without prejudice basis. These are technically two separate legal principles with different tests which may allow an employer to claim that a conversation is inadmissible on a without prejudice basis even if it is not protected under section 111A (albeit this will only be possible if there is a genuine dispute and subject to the rules regarding unambiguous impropriety).

After the protected conversation has taken place, we suggest allowing a short period of time for the employee to digest the contents of the meeting and indicate if they wish to progress with the settlement negotiations. If so, the employer should draw up a formal settlement agreement and allow the individual ten calendar days from the date that they receive the full settlement agreement wording to allow them to obtain independent legal advice regarding the terms.

If an employee does not wish to consider settlement, employers should continue with any underlying redundancy or capability processes. It is important to avoid offering the illusion that there is a choice between agreeing to the settlement offer and dismissal because such a choice is likely to be seen as improper conduct.

Please note the contents of this article do not constitute legal advice. If you require any further information, or if you would like our assistance, please contact us at employment@berrysmith.com or on 02920 345 511.