Far too often employers consider the labelling of a meeting as a “protected conversation” provides them with a carte blanche to act as they like. The case of Tarbuc v Martello Piling Ltd [2026] EAT 58 is therefore a helpful reminder regarding the extent of the protection this label affords.
As a reminder, a “protected conversation” under s111A Employment Rights Act 1996 (ERA 1996) is a permissible off the record discussion between an employee and their employer to consider the ending of employment on agreed terms. It generally cannot be referred to in ordinary unfair dismissal proceedings, subject to some all-important caveats.
Background of the case
Mr Tarbuc was employed as an engineer by Martello Piling Ltd (the Employer). In April 2024, the managing director of the Employer called Mr Tarbuc into a meeting, which was framed as a “protected conversation”. Without beating around the bush, the managing director bluntly informed Mr Tarbuc that, unless he accepted a settlement proposal, there would be a formal redundancy consultation process and that – without any ambiguity – Mr Tarbuc would come last. In other words, if he did not accept the settlement offer, his employment would be coming to an end
The Decision
Mr Tarbuc later brought claims for less favourable treatment as a part-time worker, unlawful deductions, and unfair dismissal. The Employment Tribunal (ET) held that s111A ERA 1996 protection applied and the conversation was deemed inadmissible in relation to all of the claims (and not just unfair dismissal). The Employer’s conduct was also not deemed improper and the ET directed that all discussion and references to the “protected conversation” be removed from the evidence.
Mr Tarbuc appealed to the Employment Appeal Tribunal (EAT), which took a substantially different view. The EAT held that the ET erred in determining that the “protected conversation” was inadmissible for all claims. Instead, they confirmed that s111A ERA 1996 protects pre-termination discussions but only insofar as they relate to unfair dismissal. Accordingly, such discussions remain admissible for consideration of the unlawful deductions and discrimination claims.
Interestingly, the EAT also deemed that the ET had failed to adequately consider the issue of improper conduct when considering Mr Tarbuc’s case. The ET incorrectly only focused on what the managing director had said during the meeting and specifically how this had been phrased, when it should have adopted a broader approach to the conduct of the employer. For instance, the ET had failed to consider that Mr Tarbuc was taken by surprise with little to no notice of the meeting and that he was not permitted to bring a companion to support him.
Key Takeaways
- A protected conversation only affords protection in respect of ordinary unfair dismissal claims and it does not extend to other claims.
- When considering conduct, employers need to be cautious. The approach is far from black and white, but sensible and practical steps include giving advance notice of the discussion, making sure the employee genuinely understands what a “protected conversation” entails (and avoiding overly technical explanations), refraining from any form of pressure or intimidation, and allowing the employee sufficient time to reflect on any settlement proposal.
- It is important to distinguish a “Protected Conversation” from a Without Prejudice discussion, Whilst both serve similar purposes, they are very different. The Without Prejudice rules can only apply where there is an existing dispute which the instigator is genuinely attempting to settle and, once engaged, can cover a much broader range of claims. By contrast, “protected conversations” do not require a pre-existing dispute, but (as mentioned above) their protection is focused on a singular claim; ordinary unfair dismissal In either case, however, it is important to remember that the protection may be lost where there is any improper conduct.
In short, this case is a useful reminder that the use of a “protected conversation” does not provide blanket protection. Its application is narrow, and any protection can be lost where the employer’s conduct falls short. It is therefore essential to approach such conversations with sensitivity, strategy and sound judgement.