UK: Settlement: “Protected Conversations”

Authors:  Stephen Miller, Corinna Harris, Sophie Jackson, & Charlotte Stern

Pre‑termination negotiations with an employee can be treated as confidential “protected conversations”, meaning they are generally inadmissible as evidence in ordinary unfair dismissal claims (but not, for example, automatic unfair dismissal or other statutory claims), provided there is no “improper behaviour”.

Mr Tarbuc was invited to a meeting by the managing director, described as a “protected conversation,” at which a settlement offer was made. He declined the offer and was subsequently dismissed. He brought claims for unfair dismissal, unlawful deductions from wages and less favourable treatment as a part-time worker. He alleged that the meeting was arranged without notice, that he was not given the opportunity to be accompanied, and that he was threatened with redundancy if he refused the offer.

Martello Piling Limited argued that the discussion was a “protected conversation” and should be excluded from the tribunal proceedings. The Tribunal agreed and excluded all references to the meeting across all claims.

The EAT allowed the appeal in part, holding that:

• Scope of protection: Pre-termination negotiations are only confidential in ordinary unfair dismissal claims – they should not have been excluded from his other claims.
• Improper behaviour: When determining whether protection is lost, Tribunals must assess the full circumstances, not just the content or tone of the discussion. The Tribunal failed to consider properly allegations that Mr Tarbuc had been “ambushed” and denied the opportunity to bring a companion.

The case will now be re-considered by a differently constituted Tribunal.

Key Action Points for Human Resources and In-house Counsel

This decision serves as a reminder that, while “protected conversations” are a useful tool for employers, their protection is limited as they only apply in ordinary unfair dismissal claims.

To minimise the risk of the protection being challenged, employers should ensure that such conversations are conducted fairly and transparently – in particular:

• Give reasonable advance notice of the meeting
• Permit a companion to attend where appropriate
• Allow sufficient time for the employee to consider any offer