The art of (protected) conversations
For HR professionals, ‘protected conversations’ under section 111A of the Employment Rights Act 1996 (ERA 1996) remain a valuable, but often misunderstood, tool. Designed to facilitate frank, off-the-record discussions about exiting employment, they can provide a pragmatic route to settlement. However, the protection is neither universal nor unconditional. Two Employment Appeal Tribunal decisions show just how easy it is to get this wrong.
The statutory framework
Section 111A allows employers and employees to engage in pre-termination negotiations that are inadmissible in ordinary unfair dismissal proceedings. The aim is to encourage open dialogue about settlement without fear that such discussions will later be used in litigation.
However, the protection is expressly limited. It does not apply to claims beyond ordinary unfair dismissal – such as discrimination, whistleblowing, or unlawful deductions – and can be lost where there is ‘improper behaviour’.
Gallagher v McKinnon Auto and Tyres: What ‘improper conduct’ actually looks like
Mr Gallagher was called to what he thought was a return-to-work meeting. Instead, he was told his role was redundant, handed a settlement offer and given 48 hours to decide. He refused, was dismissed for redundancy and claimed unfair dismissal – arguing the conversation should be admissible because of improper conduct.
The EAT disagreed. Being ambushed by a meeting under a misleading label? Not improper in these circumstances. A 48-hour deadline? Not improper here either. Telling him he would be made redundant if he declined? Crucially, the EAT distinguished between disciplinary and redundancy situations. The Acas Code warns against telling employees they will be dismissed if they reject an offer – but that guidance is directed at disciplinary scenarios. Where a genuine redundancy situation exists, telling an employee their role is at risk did not, in this case at least, amount to improper conduct.
Tarbuc v Martello Piling Ltd: Two lessons for the price of one
Mr Tarbuc was called to a meeting described as a ‘protected conversation’. He was offered a settlement and told that, if he refused, he would be made redundant. He was dismissed, and brought three claims: unfair dismissal, unlawful deduction from wages and less favourable treatment as a part-time worker. The tribunal excluded the conversation from all three claims.
But the EAT allowed his appeal. The first lesson: section 111A only protects against disclosure in ordinary unfair dismissal proceedings. The same evidence can be admissible in other claims running alongside – a kind of analytical compartmentalisation that tribunals handle regularly. Redacting the conversation from the wages and part-time worker claims was an error.
The second lesson concerns the improper conduct analysis. The tribunal had focused narrowly on what was said and how. It had not considered the way the meeting was called (he was approached in a corridor and ushered straight into a meeting room), or the failure to allow a companion. The EAT was clear: the fact that similar conduct was not ‘improper’ in Gallagher did not mean the same conclusion would be reached in every case. Context matters. The tribunal had to look at the full picture.
The practical takeaway
Section 111A is a genuinely useful tool – but its protection is narrow and conditional. Our top tips:
- Avoid over-reliance on confidentiality: Protected conversations are not a shield against all claims. HR should assume that discussions may still be examined in non-unfair dismissal contexts.
- Follow good process: Provide reasonable notice of meetings, allow accompaniment where appropriate, and avoid undue pressure. Alignment with the Acas Code remains best practice.
- Document carefully: Internal records may become disclosable in claims outside section 111A’s scope.
- Train managers: Many risks arise from poorly handled conversations at line-manager level.