Protected Conversations: What Employers Need To Know

What is a protected conversation under section 111A?

Section 111A of the Employment Rights Act 1996 allows employers and employees to have confidential “pre-termination negotiations”, commonly known as “protected conversations”. They are designed to enable the parties to explore agreed exit terms without those discussions being used as evidence in an ordinary unfair dismissal claim. Unlike the common law “without prejudice” rule, section 111A does not require a pre-existing dispute. However, the protection is limited and should not be treated as a blanket shield for every claim or every aspect of the discussions.

What does the Tarbuc v Martello Piling Ltd ruling mean for employers?

The decision of the Employment Appeal Tribunal (“EAT”) in Tarbuc v Martello Piling Ltd provides important clarification on two areas that employers should understand before starting a protected conversation: the scope of section 111A protection, and how “improper behaviour” is assessed.