Last week the Employment Appeal Tribunal handed down its judgment in Tarbuc v Martello Piling Ltd [2026] EAT 58. If you are an employer who has ever used, or is thinking of using, a “protected conversation” to negotiate an exit, this one is worth ten minutes of your time.
The headline: a protected conversation is not a magic spell. It does not wipe the meeting from the record. It stops the other side referring to it in an ordinary unfair dismissal claim and nothing more. Everything else a claimant brings – and most claimants bring more than one thing – remains fair game.
What happened
Mr Tarbuc was an Estimating Engineer at Martello Piling Ltd. In April 2024 the managing director collected him from his office without warning, sat him down, and described what was about to happen as a “protected conversation”. He was offered a settlement agreement and told that if he did not take it, redundancy would follow. He had no companion with him. He was given five days in writing to consider the offer. He refused, and was dismissed in June 2024.
He brought claims for ordinary unfair dismissal, unlawful deduction from wages, and less favourable treatment as a part-time worker. The Employment Tribunal held that section 111A of the Employment Rights Act 1996 applied, that the employer’s conduct was not improper, and ordered all references to the meeting redacted from the evidence and pleadings across every claim. Mr Tarbuc appealed.
What the EAT decided
Judge Stout allowed the appeal in part, identifying two errors.
The first error: section 111A does not cover everything. Section 111A(1) only renders pre-termination negotiations inadmissible in ordinary unfair dismissal proceedings. It does not apply to wages claims, part-time worker claims, discrimination claims, breach of contract claims, or automatic unfair dismissal claims such as whistleblowing or assertion of a statutory right under s.104 ERA. Where mixed claims are brought, the tribunal has to compartmentalise the evidence: protected for one claim, admissible for the others. The same words can be in the bundle for one claim and out of the bundle for another. The EAT confirmed that this approach, established in Basra v BJSS Ltd [2018] ICR 793 and Faithorn Farrell Timms LLP v Bailey [2016] IRLR 839, was the correct one. Global redaction was wrong.
The second error: improper conduct needs the full picture. Section 111A(4) takes the protection away if there has been “improper behaviour”. The Employment Judge at first instance had looked only at what the MD said at the meeting and how he said it. She did not engage with how the meeting was set up – the ambush element – or the failure to allow Mr Tarbuc a companion. Both points were clearly raised in his witness statement.
The EAT made a useful point about Gallagher v McKinnon’s Auto and Tyres Ltd [2024] EAT 174, which currently sets the bar for impropriety. In Gallagher, an ambush meeting and a 48-hour deadline did not amount to improper behaviour. That decision survived appeal because the Employment Judge had grappled with each factor in context. It does not stand for a general proposition that ambush meetings and short deadlines are always fine. The exercise has to be done case by case, looking at all factors cumulatively.
On the five-day deadline in the written offer, the EAT made a sensible point: Mr Tarbuc had already rejected the offer at the meeting itself, so the five-day period could not in fact have exerted any pressure on him. Context matters more than the number on its own.
The case has been remitted to a freshly constituted tribunal, with the final hearing listed for May 2026. The protected-conversation documents will be disclosed for the wages and part-time worker claims. Whether section 111A applies to the unfair dismissal claim is for the new tribunal to decide once it has done the improper conduct analysis properly.
What this actually means in practice
If this matter came across my desk on a Monday morning, I would flag five things.
One: stop thinking of section 111A as a confidentiality cloak. It is narrow. It blocks ordinary unfair dismissal claims and nothing else. If your departing employee has any other arguable claim – and they often do, especially around discrimination, whistleblowing, wages, or part-time/fixed-term worker status – the meeting will be in evidence.
Two: conduct the meeting as if a tribunal will read every line of any transcript. Because in any non-trivial dismissal, that is now the working assumption. The “off the record” framing is internal comfort. It is not external protection.
Three: notice and a companion are not legally required, but they help. Inviting someone to a “return to work meeting” and then ambushing them with a settlement offer is not unlawful. But it gives a tribunal a foothold if it wants to find impropriety, and it adds nothing in terms of commercial outcome. A short note in advance saying “I’d like to discuss your role and the way forward, please feel free to bring someone with you” costs nothing and removes a line of attack.
Four: deadlines need to make sense in context. The Acas Code on Settlement Agreements suggests a minimum of ten calendar days to consider a written settlement agreement. Anything shorter is not automatically improper, but the shorter the period, the more you need to be able to justify it. And, as Tarbuc reminds us, a deadline only matters if it could in fact have applied pressure.
Five: from a claimant’s perspective, plead carefully. If there is any arguable basis for an automatic unfair dismissal claim under s.104 ERA (assertion of a statutory right) or otherwise, plead it. Section 111A(3) disapplies the protection entirely where automatic unfair dismissal is in play. That is a much cleaner route than trying to prove improper conduct under s.111A(4).
The wider point
Tarbuc does not change the law. It clarifies how the law has always been intended to operate, and it pushes back on a tendency in some tribunals to treat section 111A as a one-stop redaction order. That tendency was always wrong. It was practical for case management, but it was not what Parliament wrote.
If you are running a business and weighing up whether to have a protected conversation with someone, the value of the protection is now clearly limited. It is still usually worth doing – the alternative of running a full process to dismissal is slower, more expensive, and harder on everyone involved – but go in with your eyes open about what the section actually protects, and prepare the meeting accordingly.
If you would like to discuss a specific situation – whether you are an employer thinking of starting a protected conversation, or an employee on the receiving end of one – get in touch on 0116 3667 900 or steven@stevenmather.co.uk.
Steven Mather is a solicitor specialising in business law, including settlement agreements and employment matters for SMEs and senior individuals. This article is for general information and does not constitute legal advice.