In the case of Tarbuc v Martello Piling Ltd, the claimant was dismissed following a redundancy process after a workplace discussion which the employer characterised as a “protected conversation” under section 111A of the Employment Rights Act 1996. Protected conversations are often used by employers to negotiate exit terms with employees confidentially. Protected conversations are inadmissible in unfair dismissal claims subject to exceptions including improper conduct.
The claimant brought claims for unfair dismissal, unlawful deductions from wages (relating to a bonus), and less favourable treatment as a part-time worker.
At a preliminary hearing, the Employment Tribunal held that the conversation fell within section 111A and that there had been no improper conduct. It therefore excluded all evidence relating to the conversation, directed that related documents need not be disclosed, and required all references to be redacted from the pleadings and bundle.
The claimant appealed, arguing in particular that the Tribunal had applied section 111A too broadly and had failed properly to assess whether the employer’s conduct was “improper”.
The EAT allowed the appeal in part.
In respect of the protected conversation, it confirmed that section 111A protection applies only to ordinary unfair dismissal claims. The Tribunal had erred in excluding the protected conversation evidence from the claimant’s other claims, including unlawful deductions from wages...
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