Lifting the Veil: What the EAT's Ruling in Tarbuc v Martello Piling Ltd Tells Us About Section 111A Vulnerabilities

Many employers treat a "protected conversation" under Section 111A of the Employment Rights Act 1996 as an absolute legal cloaking device. The assumption is comfortable: as long as you utter the magic words "Section 111A" before discussing an exit package, the entire interaction is permanently erased from the view of an Employment Tribunal.

However, the Employment Appeal Tribunal (EAT) has thoroughly dismantled this complacency in the landmark ruling of Tarbuc v Martello Piling Ltd [2026] EAT 58.

This decision serves as a sharp reminder that Section 111A is not a blanket shield. It is a highly specific, conditional mechanism that can easily unravel if your operational execution is flawed. For senior executives and HR professionals, understanding the vulnerabilities exposed by this case is critical to preventing protected settlement talks from becoming public liabilities.

The Background: A Redundancy "Ambush"

The dispute in Tarbuc began when the employer's Managing Director invited the claimant, an estimating engineer, to an unexpected meeting. The employer intended this to be a classic pre-termination negotiation protected by Section 111A, presenting the employee with a settlement proposal.

When the employee rejected the terms, he was subsequently dismissed, ostensibly on the grounds of redundancy. He later brought a multi-layered tribunal claim encompassing ordinary unfair dismissal, unlawful deductions from wages relating to a bonus, and less favourable treatment as a part-time worker.

At the preliminary stage, the initial Employment Tribunal heavily favored the employer. It ruled that the conversation was entirely protected, ordered the evidence to be excluded, and forced the redaction of the meeting from all pleadings. The employee appealed, prompting the EAT to step in and expose two massive structural flaws in how employers approach these conversations.

Vulnerability 1: The Compartmentalisation Trap

The most profound takeaway from the EAT’s ruling is the confirmation of Section 111A’s strict boundaries. The statutory protection applies exclusively to ordinary unfair dismissal claims. It does not extend a single millimetre beyond that specific legal boundary.

The EAT held that the first tribunal made a fundamental error of law by blocking the evidence across the board. Because the claimant had also brought claims for unpaid bonus wages and part-time worker discrimination, the details of the "protected" conversation remained completely admissible for those elements of the dispute.

For employers, this creates a dangerous procedural reality known as "compartmentalisation". In a multi-claim lawsuit, the tribunal panel will read, hear, and analyze the exact details of your off-the-record settlement offer to determine the discrimination or wage claim, while trying to wipe it from their minds when judging the ordinary unfair dismissal claim. If your protected conversation contains any statements that could imply discrimination or retaliatory intent, the fact that it is barred from the unfair dismissal claim provides cold comfort.

Vulnerability 2: Redefining "Improper Conduct" Beyond the Spoken Word

Under Section 111A(4), the statutory protection falls away entirely if the employee proves that the employer engaged in "improper behaviour". Historically, employers assumed that as long as the manager remained polite, avoided shouting, and didn’t issue overt, aggressive ultimatums during the meeting, their conduct would be deemed proper.

The EAT has firmly rejected this narrow focus. In Tarbuc, the claimant argued he had been "ambushed" without notice, denied the opportunity to bring a companion, and given an unreasonably short window to consider the exit terms. The original tribunal dismissed these complaints because they looked only at the literal words spoken in the room.

The EAT ruled that focusing solely on the content and tone of the meeting itself is an error. Tribunals are now mandated to evaluate the employer's behaviour "in the round," taking into account the broader context and the guidelines set out in the ACAS Code of Practice on Settlement Agreements. An ambush without prior warning or a systemic failure to offer the right to be accompanied can, when viewed collectively, amount to improper conduct that strips away your statutory confidentiality entirely.

The Nexus Strategy: Securing Your Pre-Termination Negotiations

To insulate your business from the vulnerabilities exposed in Tarbuc, your approach to off-the-record discussions must shift from casual conversations to tightly managed, procedurally sound interventions.

First, never use a Section 111A conversation as a substitute for a fair initial process, and never present the exit as a fait accompli. Telling an employee that their choice is either agreeing to a settlement or facing automatic dismissal is the fastest route to a finding of improper conduct via undue pressure.

Second, give reasonable advance notice in writing before the meeting takes place. Explicitly state in the invitation that the discussion will be held under Section 111A of the ERA 1996 and on a "without prejudice" basis. While it is not a statutory requirement for Section 111A, you should also explicitly offer the employee the opportunity to be accompanied by a colleague or trade union representative to directly neutralise any future allegations of a tactical "ambush".

Finally, remember that the "without prejudice" rule and Section 111A are two entirely different legal concepts with separate tests. Section 111A requires no pre-existing dispute but only protects ordinary unfair dismissal. The common law "without prejudice" rule can protect against other claims, but strictly requires an existing, live dispute between the parties. Relying on both simultaneously, where appropriate, gives your business the dual-layer insulation required in the modern tribunal landscape.

Protect Your Workplace Strategy

The margin for error in managing senior exits and settlement negotiations has never been narrower. At Nexus Employment Consultancy, we provide the forensic legal oversight necessary to execute restructures and protected conversations safely, ensuring your business stays out of the public record.