Protected conversations: evidence only inadmissible in ordinary unfair dismissal claim

One way in which an employer and employee can enter into confidential settlement negotiations is by having a ‘protected conversation’. These cannot usually be referred to in an unfair dismissal claim unless, in the tribunal’s opinion, what was said or done in the discussions was ‘improper’. There is no legal definition of what is meant by ‘improper’, but a statutory code of practice includes ’putting undue pressure on party’ as one example. The EAT has recently considered the scope of the limitations on a claimant’s ability to refer to a protected conversation.

An estimating engineer, T, was dismissed on 13 June 2024. Around seven weeks before his termination, T’s manager had held a pre-termination negotiation with him, intending this to be a protected conversation. Following his dismissal, purportedly by reason of redundancy (although this is disputed), T brought claims for unfair dismissal, arrears of pay and less favourable treatment for part-time worker. A preliminary hearing was held, at which the employment tribunal held that no part of the pre-termination discussion was ‘improper’ so it amounted to a protected conversation. The tribunal went on to order that the fact and content of the protected conversation were therefore not admissible, that documents relating to it did not need to be disclosed and that all references to the conversation should be redacted from the pleadings and hearing bundle. T appealed.

The EAT partially upheld T’s appeal. In relation to the disputed protected conversation, the EAT held:

1. protected conversation only inadmissible in ordinary unfair dismissal claim: the tribunal had committed an error of law when it failed to recognise that the contents of the protected conversation were only inadmissible in relation to T’s unfair dismissal claim. The protected conversation rules did not apply to T’s unlawful deduction from wages and part-time worker claims. This therefore meant that the tribunal had also erred when it directed that all references to the protected conversation should be redacted from all the pleadings/documents in the hearing bundles and in refusing T’s application for specific disclosure of related documents. Details of the protected conversation can be relied on in relation to T’s other claims.

2. improper conduct should be considered in the round: while the tribunal’s decision on whether the employer had engaged in improper conduct during the protected conversation was not perverse, the tribunal had erred by dealing only with what the employer’s manager had said (and how he had said it) at the pre-termination negotiation. Within its decision, the tribunal had referred to an earlier EAT decision an ambush meeting and failure to allow an employee to bring a companion was held not to amount to ‘improper’ conduct on the employer’s part. However, this did not mean that such matters will not be sufficient, in combination with other conduct, in amounting to improper conduct in a different case. The tribunal’s reasons had not mentioned T’s complaints about having been ‘ambushed’ by the pre-termination negotiation meeting and not given the opportunity to bring a companion. The tribunal should have considered those matters when determining in the round whether there had not been ‘improper’ conduct on the employer’s part.

The EAT ruled that the documents relevant to the protected conversation must be disclosed to T and will need to be considered in relation to his unlawful deduction from wages and part-time workers claims. A fresh employment tribunal will need to reconsider the issue of ‘improper’ conduct again.

Tarbuc v Martello Piling Ltd [2026] EAT 58

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