Protected Conversations In Employment Law; Section 111A of the Employment Rights Act 1996 Section 111A of the Employment Rights Act 1996 (ERA) was introduced in 2013 to provide an express mechanism to allow for confidential discussions between employers and employees with a view to reaching agreement about terms of severance. Where an employer has workplace issues, such as a poorly performing employee or a potential redundancy, it can be quite intimidating and time consuming to follow full employment processes. Many employers would prefer to cut to the chase and in these situations there can be practical incentives to have an open and frank conversation with the employee(s) concerned to try and reach an amicable and mutually beneficial resolution. Unfortunately, from the employee’s perspective these conversations can appear to pre-judge the outcome of decision in breach of the ERA and circumvent the processes necessary for a fair conclusion. A recent decision in the Employment Appeals Tribunal (EAT) has highlighted how important it is to be careful during such conversation and to ensure that correct procedures are still followed In L Tarbuc v Martello Piling Ltd [2026] EAT 58, Mr Tarbuc was stopped in the corridor unexpectedly and called into a meeting to discuss a potential redundancy situation. The employer intended the meeting as a protected pre-termination negotiation under s111A Employment Rights Act 1996 and proceeded to present Mr Tarbuc him with a settlement proposal, informing him that him he would likely come last in any redundancy process if he declined the offer. Mr Tarbuc claimed that his dismissal was an unfair dismissal, and that he had been discriminated against based on his position as a part-time worker, and that unlawful deductions had been made from his wages. At the first hearing Mr Tarbuc sought to rely on the meeting in support of his case. The Employment Tribunal (ET) found there was no improper conduct at the meeting. It held that further to Section 111A of the ERA the meeting was inadmissible in evidence across all claims. On appeal, the Employment Appeal Tribunal disagreed and allowed the appeal Section 111A(1) of the ERA 1996 applies only to unfair dismissal claims and not to other claims, such as Mr Tarbuc’s claim for part-time worker discrimination or his claim for unlawful deduction from wages. The ET therefore erred in directing that evidence of the protected conversation should be excluded from all claims. The ET also erred in its assessment of improper conduct under section 111A(4). Whilst it was correct to consider what was said at the meeting and how it was said, there is an obligation to consider the circumstances in the round, including the claimant’s complaints about being ambushed and denied the opportunity to bring a companion. As a result of these conclusions, the issue of improper conduct was remitted to a differently constituted tribunal. In Conclusion A protected conversation under section 111A of the (ERA) is an important tool, but it must be remembered that like all tools it must be used correctly. If used improperly it make an unfair dismissal more likely. It will not apply to any claim for discrimination or whistleblowing. If this is the case then the fact of the discussions, as well as their content will be evidence in any legal proceedings. Whilst such a conversation can still have benefits, if there is the potential for such claim then you need to exercise caution as to if and when to have such discussions, as well as how the situation is discussed. How the employee is approached is also important. Remember, you may have had this issue on your mind for some time, but if the employee has no knowledge there is even an issue, pulling them aside without providing them notice or support will also breach the section 111A. Whenever possible consultations on the underlying issues should already have taken place. The member should be given notice of any discussions and allowed to be accompanied by a colleague or union representative whenever possible. If you find yourself in this situation ACAS has produced a Code of Practice on settlement agreements, which Employment Tribunals are required to take into account, and can be found here [1] . Remember, as an RMI member you have access to the RMI Legal advice line, as well as several industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate. Motor Industry Legal Services Motor Industry Legal Services provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only regulated law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.