Tarbuc v Martello Piling Ltd: EAT clarifies scope of section 111A protected conversations

The Employment Appeal Tribunal has issued a significant clarification on the reach of section 111A of the Employment Rights Act 1996 (ERA 1996), holding that a protected conversation cannot render evidence inadmissible across all of a claimant's claims — and that a tribunal's improper conduct analysis must grapple with all relevant circumstances, not merely what was said at the meeting itself.

Mr Tarbuc had been employed as an Estimating Engineer by Martello Piling Limited from 2018 until his dismissal in June 2024, purportedly for redundancy. Before dismissal, the company's managing director, Mr Macklin, met with Tarbuc in circumstances Tarbuc characterised as an ambush — no advance notice, no opportunity to bring a companion — and presented him with a settlement proposal. The respondent relied on section 111A to exclude all reference to that meeting.

At a preliminary hearing in March 2025, Employment Judge Wright found no improper conduct and directed that all references to the meeting be redacted from the pleadings, bundle and witness statements across all of Tarbuc's claims, which included unfair dismissal, unlawful deduction from wages, and less favourable treatment as a part-time worker.

Section 111A is claim-specific

The EAT upheld the first ground by consent. Section 111A(1) renders pre-termination negotiations inadmissible only in proceedings under section 111 — that is, ordinary unfair dismissal. As confirmed in Faithorn Farrell Timms LLP v Bailey [2016] IRLR 839 and Basra v BJSS Ltd [2018] ICR 793, where mixed claims are brought, tribunals must "compartmentalise" the evidence: excluding the protected conversation for the unfair dismissal claim whilst permitting its use in relation to other claims. Judge Wright erred in ordering global redaction. The tribunal on remission must therefore consider the meeting's documents in determining the wages and part-time worker claims.

Automatic unfair dismissal not pleaded

Tarbuc argued that his ET1 disclosed a claim of automatic unfair dismissal under section 104, based on his having asserted a statutory right to a contractual bonus before dismissal. Had that claim been pleaded, section 111A(3) would have disapplied the protection entirely. Judge Stout rejected this ground. Whilst the ET1 plainly alleged a causal link between the bonus dispute and the dismissal, it did not assert that Tarbuc had alleged an infringement of a statutory right — a necessary element under section 104. The factual foundation for the claim was not present. Applying the principles restated in Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185, the ET1 did not "shout out" a section 104 claim, and Judge Wright was under no duty to raise it of her own motion.

Improper conduct must be assessed in the round

The EAT allowed this ground. In holding that Mr Macklin's conduct was not improper, Judge Wright confined her analysis to what was said at the meeting and how it was expressed. She made no reference to the manner in which the meeting had been arranged — Tarbuc having been collected from his office without warning — or the absence of any opportunity to bring a companion. Both points had been specifically advanced in his witness statement. Drawing on Gallagher v McKinnon's Auto and Tyres Ltd [2025] IRLR 112, Judge Stout observed that the decision in that case survived appeal precisely because the Employment Tribunal had been nuanced and had addressed all relevant matters expressly. No such analysis appeared here. The question of improper conduct must be reconsidered, taking all circumstances into account cumulatively.

The matter is remitted to a freshly constituted tribunal, with the final hearing listed for May 2026. Documents relating to the protected conversation are to be disclosed for use in the non-unfair dismissal claims. Whether section 111A ultimately applies to the unfair dismissal claim remains for the reconstituted tribunal to determine following a full assessment of improper conduct.