In this case, the EAT ordered an employment tribunal to reconsider whether ambushing an employee with an unannounced meeting amounted to improper behaviour, and confirmed that a protected conversation under section 111A of the Employment Rights Act 1996 (s111A) is only inadmissible in ordinary unfair dismissal claims.
Background
S111A makes evidence of pre-termination negotiations inadmissible in ordinary unfair dismissal claims. However, where the tribunal regards anything said or done to be improper, or to be connected with improper behaviour, inadmissibility only applies to the extent the tribunal considers this just. This is different from without prejudice protection, which shields employers from all claims but requires a dispute before the protection applies.
Facts
Mr Tarbuc was employed by Martello Piling Ltd from 2018 until his dismissal in June 2024, purportedly for redundancy. In April 2024, the respondent's managing director, Mr Macklin, called Mr Tarbuc into a meeting without notice and presented him with a settlement offer. Mr Tarbuc alleged that Mr Macklin had threatened him with redundancy if he refused the offer; that the meeting had been sprung on him without notice or the opportunity to bring a companion, and that he was only given five days to consider the offer.
Following his dismissal, Mr Tarbuc brought claims of unfair dismissal, unauthorised deductions from wages and part-time worker discrimination. Mr Macklin denied acting improperly and argued that the evidence Mr Tarbuc was seeking to rely on was inadmissible under s111A. The tribunal preferred Mr Macklin's account finding that he had told Mr Tarbuc at the meeting that he was dissatisfied with Mr Tarbuc’s performance and that he would not score well in a selection exercise, but accepted that Mr Macklin’s approach was measured and that he was attempting to avoid the unrest that a redundancy situation would cause. The tribunal therefore found no improper conduct. It directed that all references to the meeting be redacted from the pleadings and bundle across all of Mr Tarbuc's claims.
Mr Tarbuc appealed to the EAT. The EAT held by consent that the tribunal had clearly made a mistake in applying s111A to all Mr Tarbuc's claims: his claims of unlawful deduction from wages and less favourable treatment as a part-time worker were not within the scope of s111A protection. Accordingly, the tribunal had also made a mistake by directing that all references to the "protected conversation" should be redacted from all of the documents in the hearing bundles, and by refusing Mr Tarbuc's application for specific disclosure of related documents. The EAT made a direction that the documents relevant to the "protected conversation" needed to be disclosed and considered by the tribunal in relation to Mr Tarbuc's unlawful deduction from wages and part-time worker claims.
The EAT also found that the tribunal had erred by assessing improper conduct solely by reference to what was said at the meeting and how it was said, without considering Mr Tarbuc's complaints that he had been ambushed by an unannounced meeting and denied the opportunity to bring a companion. These were both matters that he had raised in his witness statement as part of why he said there was improper conduct. The tribunal's failure to address these elements of Mr Tarbuc's case made its reasons inadequate. In coming to this decision, the EAT considered the case of Gallagher v McKinnon’s Auto and Tyres Ltd (see our alert here) where it was held that being ambushed by a meeting and having little time to consider a settlement proposal were not sufficient to constitute improper conduct. However, the EAT noted that this point was 'nuanced' and in the Gallagher case all relevant matters had been considered and expressly dealt with in the tribunal's reasons. That was not the position here.
Finally, the EAT noted that the five day period to consider the settlement offer was a red herring on the facts: Mr Tarbuc had rejected the offer outright at the meeting, so this did not add to any pressure on him. Further, although the Acas Code of Practice recommends ten calendar days to consider the ‘proposed formal written terms of a settlement agreement and to receive independent advice’, the letter did not offer formal terms for a settlement agreement, it set out proposed ‘heads of terms’ and envisaged that a formal settlement agreement would follow if the ‘heads of terms’ were agreed.
What does this mean for employers?
This case illustrates the limits and difficulties of relying on s111A protection when having exit discussions with employees. Employers should not assume, even in a redundancy situation, that an employee will only issue an ordinary unfair dismissal claim in which any properly handled discussions would be inadmissible. In this case if the employer defeats the allegation that an ambush meeting and being denied the right to be accompanied does not meet the impropriety threshold, the fact that the content of the meeting is in any event admissible for the employee's other claims may make any success on the impropriety issue a moot point. These issues of evidence handling and time management could have been avoided had the meeting taken place under without prejudice protection.
