Is A Protected Conversation Admissible In Evidence In An Employment Tribunal?

Sometimes it might be. It depends. 

In Tarbuc v Martello Piling Ltd [2026] EAT 58 the Employment Appeal Tribunal (EAT) held that an employment tribunal misapplied section 111A of the Employment Rights Act 1996 (ERA 1996) by excluding evidence relating to pre-termination negotiations. 

Section 111A of ERA 1996 provides for confidentiality of negotiations before termination of employment but it does not protect improper conduct during those negotiations. 

The Acas guidance on settlement agreements provides a useful summary of the distinction between section 111A conversations and those conducted on a without prejudice basis here. 

Section 111A renders pre-termination negotiations admissible only in relation to ordinary unfair dismissal proceedings. Where any of the protected characteristics of the Equality Act 2010 are engaged a more cautious approach is required. Employers often get this wrong including when they ask an employee to have a without prejudice conversation where there is no dispute evident. 

In Tarbuc the EAT reminded the parties that the same evidence might need to be treated differently according to the type of claim to which it relates. This may require an “analytical compartmentalisation” as undertaken in Basra v BJSS Ltd [2018] ICR 793.

Mr Tarbuc was called to a meeting which his managing director described as a protected conversation. Mr Tarbuc was allegedly offered a settlement agreement and told that if he did not accept it, he would be made redundant. Following his dismissal Mr Tarbuc brought claims of unfair dismissal, unlawful deductions and less favourable treatment of a part-time worker. An employment tribunal held that section 111A of ERA 1996 applied, that there was no improper conduct from Martello Piling and that all references to the conversation should be redacted from the evidence. Mr Tarbuc appealed. 

The EAT allowed the appeal in part. Section 111A only applied to the unfair dismissal claim. The tribunal had also erred in its approach to improper conduct. The Employment Judge considered only what the company’s MD had said and how he had said it. She did not deal with the way the meeting was called or the failure to allow a companion to attend. An ambush meeting could be sufficient to establish improper behaviour despite the contrary finding in Gallagher v McKinnon’s Auto and Tyres Ltd [2024] EAT 174. 

The case has been remitted (sent back for rehearing) to a fresh tribunal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.