Protected Conversations: Why The Process Matters As Much As The Words Used

Many employers use section 111A of the Employment Rights Act 1996 to explore an agreed exit with an employee where there is no existing dispute.

The EAT's decision in Mr L Tarbuc v Martello Piling Limited(Opens in a new tab) reminds employers that protecting a conversation requires more than choosing the right words. Employers must handle the entire process carefully if they want the discussion to remain off the record in any subsequent ordinary unfair dismissal claim. 

What is section 111A?

Section 111A of the Employment Rights Act 1996(Opens in a new tab) allows employers to hold confidential discussions with an employee to agree the terms of an exit, even where no dispute exists. 

If those discussions do not result in an agreement, neither party can rely on them in any subsequent ordinary unfair dismissal claim, provided there has been no improper behaviour.