Protected Conversations: A Reminder That “Off the Record” Does Not Always Mean Protected

The recent Employment Appeal Tribunal (EAT) decision in Tarbuc v Martello Piling Ltd provides an important reminder for employers that simply labelling a meeting as a “section 111A protected conversation” does not automatically make it off the record.

Section 111A of the Employment Rights Act 1996 allows employers and employees to have confidential pre-termination discussions, usually regarding the possibility of ending employment under a settlement agreement. However, that protection is limited and can be lost in certain circumstances.

 

What Did the EAT Say?

In Tarbuc, the EAT confirmed that section 111A protection only applies to ordinary unfair dismissal claims and can fall away where there has been “improper behaviour”.

Importantly, the Tribunal highlighted that it is not just the words used during the meeting that matter.  The wider circumstances surrounding the conversation will also be considered.

In this case, factors such as:

• the meeting being arranged without warning;
• the employee not being permitted to bring a companion; and
• perceived pressure around redundancy if the offer was rejected,

were all considered relevant to the overall assessment.

While the EAT confirmed that an “ambush” meeting will not automatically amount to improper behaviour, it may still contribute to a Tribunal’s view depending on the particular facts of the case.

 

Practical Considerations for Employers

This decision does not mean that advance notice or allowing a companion will be necessary in every protected conversation.  However, it does reinforce the importance of handling these discussions carefully and proportionately.

For example, it may be sensible to consider giving prior warning where:

• the employee is senior;
• the employee has been absent on long-term sick leave;
• there are wellbeing or vulnerability concerns; or
• the conversation is likely to come as a significant surprise.

 

Similarly, allowing a companion, or at least not refusing one if requested, may help reduce risk in more sensitive situations.

Every situation will depend on its own facts and a measured, well-planned approach is often key to reducing legal and employee relations risk.

 

The Limits of Protection in Discrimination Cases

A further important point arising from this area of law is that section 111A protection only applies to ordinary unfair dismissal claims.

It does not prevent conversations being referred to in claims involving:

• discrimination;
• whistleblowing; or
• other automatically unfair dismissal claims.

 

In those circumstances, employers often seek to rely on the “without prejudice” rule instead.  However, for without prejudice protection to apply, there must usually already be a genuine existing dispute between the parties.

For example, where an employee has already raised formal complaints, grievances or intimated legal action, discussions may attract without prejudice protection. However, where no dispute yet exists, simply marking a conversation “without prejudice” will not automatically make it inadmissible in later Employment Tribunal proceedings.

This can create significant risk where protected characteristics may be engaged, as conversations intended to remain confidential could later be scrutinised as evidence in Tribunal proceedings.

 

A Careful and Strategic Approach is Essential

Protected conversations can be a useful tool for resolving workplace issues and facilitating agreed exits. However, employers should avoid assuming that simply initiating a protected conversation removes all legal risk.

Where settlement discussions do not result in agreement, it is important to ensure there is a clear and legitimate fallback position, such as a redundancy, disciplinary or performance management process, which can be progressed fairly and consistently if required.

 

How We Can Help

Navigating protected conversations and settlement discussions can be complex, particularly where there are concerns around discrimination risk, long-term sickness absence or sensitive employee relations issues.

Our experienced HR Consultants can support employers with:

• planning and managing protected conversations;
• assessing legal and employee relations risk;
• advising on appropriate process and wording;
• supporting settlement discussions; and
• helping employers manage any fallback formal process where required.

 

If you would like advice or support on handling a protected conversation or settlement discussion, please get in touch with one of our experienced HR Consultants.