‘Protected conversation’ ruling limits employer’s bid to hide evidence
The Employment Appeal Tribunal (EAT) has ruled that a so-called “protected conversation” cannot be used to hide evidence from claims such as unpaid wages or part-time worker discrimination, even if the same evidence is inadmissible for an ordinary unfair dismissal claim.
The decision, in Mr L Tarbuc v Martello Piling Ltd, partially overturned an Employment Tribunal ruling that had excluded all evidence of a disputed workplace conversation.
Mr Tarbuc, an estimating engineer, was dismissed purportedly for redundancy. He alleged that the managing director, Mr Macklin, ambushed him in a corridor, gave him no opportunity to bring a companion, and said: “I don’t trust you, and I want you to leave the business… if you don’t [accept this offer], I will put all the estimators in the redundancy process, and I guarantee you will come last.”
Mr Tarbuc brought multiple claims: ordinary unfair dismissal, unlawful deduction from wages (regarding a contractual bonus), and less favourable treatment as a part-time worker.
The employer argued that the conversation was a “pre-termination negotiation” protected by section 111A of the Employment Rights Act 1996, meaning all evidence of it should be inadmissible and redacted from the case file. The Employment Tribunal agreed.
The EAT allowed Mr Tarbuc’s appeal, finding the original judge had made a fundamental legal error.
Judge Stout held that section 111A protection applies only to “ordinary” unfair dismissal claims. It does not apply to other statutory claims brought in the same proceedings.
“The judge erred in law… in directing that all references to the protected conversation should be redacted from all the documents,” the EAT ruled. The evidence remains admissible for the unlawful deduction and part-time worker claims.
The EAT also found the original judge had applied the “improper behaviour” test too narrowly, focusing only on what was said during the meeting, while ignoring Mr Tarbuc’s complaints that he was ambushed and denied the right to bring a companion – factors the ACAS Code of Practice expressly recognises as potentially improper.
However, the EAT rejected Mr Tarbuc’s argument that he had implicitly pleaded a claim for automatic unfair dismissal, confirming that tribunals are not required to act as inquisitors or mine pleadings for unpleaded claims.
The case returns to the Employment Tribunal for a final hearing, where judges must perform a difficult “analytical compartmentalisation”: the conversation evidence will be inadmissible for the ordinary unfair dismissal claim but admissible for the wage and part-time worker claims.
The ruling serves as a clear warning to employers: a protected conversation is not a blanket shield. It cannot be used to hide evidence of unlawful deductions, discrimination, or improper conduct that is relevant to other statutory claims.
