Protected Conversations – What does s111 A Cover?

In the recent case of Tarbuc v Metro Piling, the EAT discussed the scope of S111A of the Employment Rights Act which provides that certain offers to employees to settle employment claim under a settlement agreement cannot later be disclosed in tribunal proceedings.

Mr Tarbuc was employed as an Estimating Engineer.

His employer called him unexpectedly to a meeting, offered him a settlement proposal, and told him he would probably come last in any redundancy process if he declined the offer.

The Respondent sought to characterise the meeting as a protected pre-termination negotiation under s111A.

Mr Tarbuc claimed ordinary unfair dismissal, discrimination based on part-time worker status, and unlawful deductions from wages.

The tribunal found there was no improper conduct at the meeting and held that the meeting was inadmissible in evidence across all claims.

The Employment Appeal Tribunal allowed the appeal on two grounds:

1. Section 111A only gives protection from admissibility in ordinary unfair dismissal cases. The same evidence can be admissible in other claims running alongside ordinary unfair dismissal. The conversation should have formed part of the evidence for the part-time worker discrimination and unlawful deductions claims as these were not covered by S 111A.
2. The tribunal’s improper conduct analysis focused exclusively on what was said during the meeting and how it was said. It made no mention of Mr Tarbuc’s specific complaints that he had been ambushed and denied the opportunity to bring a companion. The tribunal was required to consider the full circumstances in the round, holistically, not just the content of the conversation itself.

The issue of improper conduct was remitted to a different tribunal.

An important case on the importance of thoroughly considering the nature of potential claims before offering an employee a settlement agreement and whether they will be covered by S111A or wider privilege.

If you need advice on a settlement or are thinking of offering an employee such an agreement call or email us, we are here to help.