What is a ‘protected conversation’ and why does it matter?
A ‘protected conversation’ allows employers and employees to have open discussions about ending employment, often with a settlement agreement in mind. Under section 111A of the Employment Rights Act 1996, what is said in those discussions is usually inadmissible in an ordinary unfair dismissal claim. The aim is to encourage candid discussions without fear that those conversations will later be replayed in tribunal proceedings.

However, that protection is not absolute. If anything said or done during the conversation is considered ‘improper’, a tribunal may decide that the protection falls away.

What happened in Tarbuc v Martello Piling Ltd?

Mr Tarbuc brought claims for unfair dismissal, unauthorised deductions from wages and part-time worker discrimination following his dismissal on grounds of redundancy. Before dismissing him, the employer held a meeting to discuss a potential redundancy and a settlement proposal.

Mr Tarbuc said the meeting was sprung on him without warning, that he was not allowed to bring a companion, and that he was effectively threatened with redundancy if he did not accept the settlement offer. The employer argued that this was a protected conversation and should not be referred to in the tribunal.

The employment tribunal accepted the employer’s argument and excluded all references to the meeting, but Mr Tarbuc appealed this to the Employment Appeal Tribunal (EAT).

What did the EAT decide?

The Employment Appeal Tribunal (EAT) found that the tribunal had made two important errors.

First, protection under section 111A only applies to ordinary unfair dismissal claims. It does not apply to other claims, such as discrimination or unauthorised deductions from wages. The tribunal was therefore wrong to exclude the evidence for all of Mr Tarbuc’s claims.

Secondly, when considering whether there had been ‘improper behaviour’, the tribunal looked only at what the manager said and how he said it. It failed to consider the wider context of the meeting, including the complaint that Mr Tarbuc had been ‘ambushed’ without notice and denied the opportunity to bring a companion.

The EAT did not say that an ambush meeting will always amount to improper behaviour. In fact, it referred to an earlier case where similar facts did not cross that threshold. The key point was that tribunals must look at all the circumstances and explain their reasoning carefully.

Does the time given to consider a settlement offer matter? 

Often it does, but not always. In this case, the employee rejected the offer outright during the meeting. That meant the stated five‑day period to consider the offer did not, on the facts, add to any pressure.

The EAT also noted that ACAS guidance on allowing ten days applies to formal written settlement agreements. Here, the employer had only presented proposed heads of terms, with a formal agreement contemplated later.

What are the practical lessons for HR teams?

This case underlines that how you handle a protected conversation is just as important as what you say.

Key practical steps include:

• Avoid ambush meetings. Give advance notice of meetings that may involve settlement discussions and be clear about their purpose.
• Allow a companion. Refusing one may be relevant to whether the process is considered fair.
• Mind the tone and context. Even measured language can be problematic if combined with surprise, pressure or lack of opportunity to reflect.
• Be clear on scope. Remember that protected conversations only shield ordinary unfair dismissal claims, not other types of claim.
• Document your approach. Clear, careful records can be invaluable if your conduct is later scrutinised.

How can we help? 

Handled properly, protected and without prejudice conversations remain a valuable tool for resolving workplace issues commercially and sensitively. Handled badly, they risk becoming evidence in tribunal proceedings.

We regularly advise HR teams on planning and conducting these conversations, including supporting managers before difficult meetings and advising on settlement proposals. If you would like guidance on how to approach a protected or without prejudice conversation, or training for managers to reduce risk, we would be happy to help - just get in touch.