Protected conversations: Lessons from Tarbuc v Martello Piling Ltd

In the recent case of Tarbuc v Matello Piling Ltd, the Employment Appeal Tribunal (EAT) clarified the scope and the application of “protected conversations” under section 111A of the Employment Rights Act 1996 and the circumstances in which such discussions may lose statutory protection.

In this case, the Claimant sought to rely on pre-termination discussions, arguing that the employer had acted improperly and therefore the conversations should not be protected.

The Employment Tribunal had excluded this evidence entirely, finding section 111A applied.

On appeal, the EAT held that the Employment Tribunal had erred in treating the protection as applying to all claims, determining that the Tribunal had taken a too broad approach and confirmed that the protection only applies to claims for ordinary unfair dismissal and does not extend to other types of claims such as unlawful deduction from wages or detriment claims. This meaning that the same evidence may be inadmissible in an unfair dismissal claim but still admissible in others arising from the same facts.

The EAT also held that the Employment Tribunal failed to properly assess improper behaviour, as it focused too narrowly on what was said during the meeting and did not consider the wider context, including the Claimant’s allegations of being taken by surprise and not given the opportunity to be accompanied.

Whilst the EAT did not conclude that improper conduct had necessarily occurred, it found that the Tribunal’s reasoning was inadequate because it had failed to assess the matters as a whole. This case therefore highlights to employers that they cannot rely solely on labelling discussions as protected conversations for protection. Tribunals will closely examine both the substance of the discussion and the way in which it was arranged, with procedural fairness remaining the key consideration when seeking to rely on statutory confidentiality protections.

For advice on protected conversations or any other employment law matter, please contact the Backhouse Jones employment team.

This article was written by Gabrielle Scriven.