Protected Conversations Under Scrutiny: Lessons from Tarbuc v Metro Piling

In this case, the EAT held that tribunal’s improper conduct analysis focused exclusively on what was said during the meeting with the employee and how it was said. The tribunal made no mention of the Claimant’s specific complaints that he had been ambushed without notice and denied the opportunity to bring a companion. The tribunal should have considered the full circumstances in the round, not just the content of the conversation itself. The EAT have remitted the case back to a differently constituted tribunal to consider the issue of improper conduct, but this case highlights that protected conversations will need to be conducted carefully in order to ensure that they benefit from the provisions of Section 111A of the ERA 1996.

Notice of meetings and accompaniment

Notice of meetings and accompaniment are referenced in the Statutory Code of Practice which has been produced to assist with understanding the implications of section 111A. The Code can be found here. Failure to follow the Code does not, in itself, make a person or organisation liable to proceedings, nor will it lead to an adjustment in any compensation award made by an employment tribunal. However, employment tribunals will take the Code into account when considering relevant cases.

Within the Code it states that it is not necessary for an employer to have followed any particular procedure prior to offering settlement terms in order to attract protection under S.111A. However, the Code has some recommendations in relation to specific aspects of the pre-termination discussions:

• In relation to the employer making an offer of settlement, it notes that it may be helpful if reasons for the proposal are given when the proposal is made (para 11). It states that a proposal may be oral but notes that a valid settlement agreement will need to be reduced into writing at some point. If an offer is made, the employee should be given a reasonable period of time to respond to it.

• What constitutes a reasonable period will depend on the circumstances, although a minimum of ten calendar days should generally be allowed to consider the proposed formal written terms of a settlement agreement and to receive independent advice, unless the parties agree otherwise (para 12).

• The Code also states that, while there is no statutory right to be accompanied at a meeting to discuss a settlement agreement, as a matter of good practice the employer should allow the employee to be accompanied at the meeting by a work colleague or trade union official or representative if they requests, as this may help to progress the settlement discussions (para 13). If and when a settlement is agreed, the details of any payments due to the employee and their timing should be included in the agreement (para 14).

The non-binding ACAS Guide (which can be found here ) also makes some suggestions as to best practice in relation to settlement negotiations under S.111A. It states that:

• At the start of the meeting, it is advisable to make sure that those involved are aware that any discussions about a proposed settlement agreement are expected to be inadmissible in relevant legal proceedings.

• It should also be made clear that the discussions will have no bearing on any disciplinary or capability procedure in the event that agreement is not reached. that the discussion process is voluntary, and that either party is free to pull out at any time.

• Refusing a request to be accompanied may amount to unlawful discrimination. For example, it may be a reasonable adjustment to allow a disabled employee to be accompanied because of the nature of their disability.

Two cases are useful on the procedure point:

• In Murray v Hudson Administration Services Ltd ET Case No.1806168/20 an employment tribunal held that there was no need for an employee to understand the implications of a negotiation in terms of legal inadmissibility in order for such a negotiation to be caught by the terms of S111A. In that case, the negotiation in question simply comprised the offer of a monetary settlement with the condition that the claimant had seven days to consider the offer. Although the manager, in communicating this, had told the claimant that the conversation was ‘off the record’, he had not explained that it would not be possible for her to refer to the conversation in subsequent legal proceedings, at least as regards a claim of unfair dismissal. The tribunal, in holding that it is not necessary for an employer to follow any particular procedure before initiating a protected conversation, held that the offer in this instance was sufficient for S.111A to apply and so render details of it inadmissible in respect of the claimant’s unfair dismissal claim.

• Armstrong v Lyons Presentations Group Ltd ET Case No.2207736/16: A had been the subject of a number of disciplinary warnings concerning his performance and late attendance. He had become increasingly unhappy at work after alleging that he had been the subject of conduct by a colleague which amounted to unfair constructive dismissal and sexual orientation discrimination. The situation led to LPG Ltd making an offer of settlement of his grievance. In his subsequent claim for unfair dismissal, among other things, A sought to have admitted into evidence details of a conversation expressed to be ‘without prejudice’, which was conducted by two managers, during which the terms of an offer on which termination of employment would be agreed were put to A. The employment tribunal acceded to this on the basis that the conversation had featured improper conduct within the terms of S.111A(4), including that A had not understood the meaning of ‘without prejudice’ but had felt pressure to say that he did; that there had been no explanation of the meaning of that phrase and the legal ramifications of it; and that A had been given no prior warning of a S.111A  discussion and was alone with two experienced managers during it.

Improper behaviour – undue pressure
The Code contains a non-exhaustive list of what would be considered improper behaviour:

• harassment, bullying and intimidation, including the use of offensive words or aggressive behaviour

• criminal behaviour, such as the threat of physical assault

• victimisation

• discrimination because of age, sex, race, disability, sexual orientation, religion or belief, gender reassignment, pregnancy and maternity, and marriage or civil partnership

• putting undue pressure on a party.

In terms of putting undue pressure on a party, the Code explains that this may include:

• not giving an employee a reasonable period of time to consider any proposed settlement offer,

• an employer saying before any form of disciplinary process has been commenced that the employee will be dismissed if he or she rejects a settlement proposal,

• or an employee threatening to undermine an organisation’s public reputation if the organisation does not sign a settlement agreement (unless the provisions of the Public Interest Disclosure Act 1998 apply).

Our position and a standard letter

When acting for employers

When considering the case law and the Code, it would be sensible to advise employer clients that it would be best practice to give employees notice of a meeting where they will be having a protected conversation, and allow the employee to be accompanied as this may assist if there is ever an assertion made by a Claimant that a protected conversation should be admissible in ET proceedings due to the employer’s improper conduct. I appreciate the client may feel this is not appropriate in all cases depending on the specific circumstances but we still need to flag the risks of not adopting this approach. If the client decides not to give advance warning of the meeting/right to be accompanied, they should still consider expressly offering the employee the right to be accompanied once the employee has been informed the meeting is a protected conversation and we should build this into any draft scripts we prepare unless the client has expressly instructed us to remove this (please ensure instructions on this point are recorded on the file).   If a client does want the protection of S.111A, attached is a precedent letter which will be useful to set out the terms of potential settlement and encourage our clients to ensure that they do not fall foul of any suggestion of “improper conduct”.

When acting for employees on exits/settlement agreements

If a protected conversation has been organised without the employee receiving advance notice of this and the employee is not offered the right to be accompanied either in advance or during the meeting itself, this may be a useful point to refer to as part of negotiations to leverage the employee’s negotiating position and/or to assist with any argument that the conversation is not protected due to alleged improper conduct.