L Tarbuc v Martello Piling Limited

Section 111A of the Employment Rights Act 1996 protects pre-termination negotiations only in proceedings for ordinary unfair dismissal. Where mixed claims are brought, the tribunal must compartmentalise the evidence. It may exclude the conversation for the ordinary unfair-dismissal claim while considering it for claims to which the statutory exclusion does not apply.

A tribunal assessing improper behaviour under section 111A(4) must consider the circumstances as a whole. It must address material allegations concerning the manner in which a settlement meeting was arranged and conducted, including an alleged ambush and the absence of an opportunity for accompaniment. A tribunal has no general duty to identify an unpleaded automatic-unfair-dismissal claim where its factual basis does not clearly emerge from the ET1.

The claimant appealed from a preliminary decision of the London South Employment Tribunal concerning a meeting held before his dismissal for asserted redundancy. The Employment Tribunal held that the meeting was a protected conversation under section 111A of the Employment Rights Act 1996. It excluded its fact and content, refused related disclosure, and required redactions from the case documents.

The claimant had pleaded ordinary unfair dismissal, unlawful deduction from wages, and less favourable treatment as a part-time worker. He contended that the statutory protection could not apply to all claims, that his ET1 raised automatic unfair dismissal for assertion of a statutory right, and that the employer's conduct was improper. The central issues were the claim-specific scope of section 111A and whether the Employment Tribunal had adequately assessed improper behaviour.

1. Appeal allowed in part. Ground 1(a) succeeded by consent. Section 111A(1) applies only to proceedings on a complaint of ordinary unfair dismissal. It did not render the meeting evidence inadmissible for the claimant's unlawful-deduction-from-wages or part-time-worker claims. The Employment Tribunal had therefore erred in ordering universal redaction and in refusing disclosure of documents relevant to the conversation.

2. The tribunal must compartmentalise the evidence between claims. The material remains inadmissible for an ordinary unfair-dismissal claim unless an exception applies, but it may be considered for other claims. The EAT directed disclosure for those other claims, while leaving evidence handling and trial management to the Employment Tribunal.

3. Ground 1(b) failed. A section 104 claim requires, among other matters, an allegation before dismissal that the employer infringed a relevant statutory right. The ET1 alleged only that the claimant had requested payment of a bonus. It did not clearly allege an assertion that a statutory right had been infringed. The claim did not emerge clearly enough from the pleadings to require the Employment Judge, of her own motion, to identify or raise an automatic-unfair-dismissal claim.

4. Ground 2 succeeded. The Employment Tribunal considered only what the managing director said at the meeting and the manner in which he said it. It did not address material allegations that the claimant had been unexpectedly summoned and denied an opportunity to bring a companion. Improper behaviour under section 111A(4) required assessment of the full circumstances and adequate reasons dealing with the principal case advanced. The five-day period in the unaccepted heads of terms did not itself add pressure because the claimant rejected the offer at the meeting and the Code's ten-day guidance concerned formal written settlement terms.

5. Ground 3 failed. The finding that the managing director had taken and followed advice was not perverse. The improper-behaviour issue was remitted for reconsideration before a different Employment Judge.

• Employment Appeal Tribunal: Allowed the appeal on the claim-specific scope of section 111A and on the inadequate assessment of improper behaviour; dismissed the grounds concerning a putative section 104 claim and perversity. The improper-behaviour issue was remitted: [2026] EAT 58.
• London South Employment Tribunal: At a preliminary hearing, held that the meeting was protected by section 111A of the Employment Rights Act 1996, excluded the evidence, refused related disclosure, and directed redactions.