Tarbuc v Martello Piling Ltd clarifies the narrow scope of section 111A: protected conversations do not shield all claims and may fall away where conduct is assessed holistically.

Published: 10 June 2026
Authors: Jessica Pearson

Employers frequently rely on ‘protected conversations’ under section 111A of the Employment Rights Act 1996 (ERA 1996) as a tool to explore exit arrangements without the risk that what is said will later be used against them in litigation. However, the recent decision in Tarbuc v Martello Piling Ltd [2026] EAT 58 serves as a timely reminder that the protection afforded by section 111A is narrower than is often assumed.

In particular, the case highlights two key points. First, that section 111A protection is restricted to ordinary unfair dismissal claims and does not extend to other statutory or contractual claims. Secondly, that tribunals must take a holistic approach when assessing whether ‘improper conduct’ displaces that protection. Together, these principles significantly limit the extent to which employers can rely on protected conversations as a litigation shield.

A brief refresher: Section 111A ERA 1996

Section 111A was introduced to encourage pre-termination discussions by providing that evidence of such negotiations is generally inadmissible in proceedings for ordinary unfair dismissal.

However, the scope of that protection is limited. It does not extend to other types of claim, such as discrimination, whistleblowing, unlawful deductions from wages, or claims under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations.

In addition, section 111A protection can be lost where there has been ‘improper conduct’. While the statute does not define this exhaustively, case law and ACAS guidance make clear that it requires a fact-sensitive assessment of the employer’s behaviour.

Against that background, Tarbuc is a useful illustration of how these principles operate in practice.

The facts in Tarbuc

Mr Tarbuc was employed by Martello Piling Ltd. In April 2024, he was invited to a meeting that was described as a ‘protected conversation’. At that meeting, the employer presented a settlement offer and indicated that redundancy would follow if the offer was rejected. Following his dismissal, Mr Tarbuc brought a number of claims, including unfair dismissal, unlawful deductions from wages, and less favourable treatment as a part-time worker.

The employment tribunal initially held that section 111A applied and that there had been no improper conduct. On that basis, it directed that all references to the protected conversation should be removed from the evidence and pleadings across all claims. Mr Tarbuc appealed and the Employment Appeal Tribunal (EAT) allowed the appeal in part, identifying two key errors in the tribunal’s reasoning.

Section 111A does not apply to all claims

The EAT held that the tribunal had misapplied section 111A by excluding evidence of the protected conversation in relation to all claims, since it only renders pre-termination negotiations inadmissible in proceedings for ordinary unfair dismissal. It does not extend to other causes of action.

This means that, where multiple claims are brought, tribunals may be required to admit the same evidence for some claims but not others. The EAT referred to this as a form of ‘analytical compartmentalisation’, noting that courts and tribunals are well accustomed to taking such an approach.

In practical terms, this significantly undermines any assumption that a ‘protected conversation’ will be excluded wholesale from proceedings.

Improper conduct must be assessed holistically

The EAT also found that the tribunal’s approach to the question of improper conduct was too narrow. In assessing whether the employer’s behaviour was improper, the tribunal had focused only on what was said during the meeting. However, it failed to consider the surrounding circumstances, including how the meeting was arranged and the fact the employee was not permitted to be accompanied.

The EAT made clear that these factors were relevant and should have been taken into account. Although previous authority had held that an ‘ambush’ meeting or a refusal to allow a companion will not automatically amount to improper conduct, it does not mean such factors are irrelevant.

The EAT also addressed the issue of time pressure. It confirmed that the adequacy of any deadline for accepting a settlement offer must be assessed in context. On the facts, the provision of a five-day period did not amount to improper conduct, particularly as the offer had already been rejected at the meeting.

The case was ultimately remitted to a freshly constituted tribunal.

Practical implications for employers

Tarbuc is a clear reminder of the practical risks that arise when employers treat protected conversations as a complete form of litigation privilege. The most immediate takeaway is that section 111A does not provide a global exclusion of evidence. Where an employee brings multiple claims, particularly alongside ordinary unfair dismissal, there is a real risk that the contents of a protected conversation will be admissible in respect of at least some of those claims. Employers should therefore proceed on the basis that anything said in a protected conversation may ultimately be scrutinised in tribunal proceedings.

Tarbuc also underlines the procedural complexity that can arise in litigation. Tribunals may be required to consider the same evidence for certain claims while disregarding it for others. This can create evidential and strategic challenges, particularly where the facts are closely linked.

Process matters as much as substance

Perhaps the most significant practical point concerns the assessment of improper conduct. The EAT’s judgment confirms that the tribunal’s focus should not be limited to the content of the discussion. Instead, it must consider the wider context, including:

• how and when the meeting was arranged
• whether the employee had an opportunity to prepare
• whether procedural fairness was observed (for example, in relation to accompaniment)

This reflects a broader theme in employment law: that the manner in which decisions are implemented is often as important as the decision itself.

Settlement strategy considerations

For employers, the key implication is that reliance on section 111A should never be absolute. In particular:

• where there is a realistic prospect of claims beyond ordinary unfair dismissal, the protection afforded by section 111A may be of limited use
• care should be taken to ensure that discussions are conducted in a manner that cannot be criticised as improper
• communications should be drafted on the basis that they may ultimately be disclosable

In some cases, employers may wish to consider whether the without prejudice rule provides a more appropriate or complementary form of protection. However, there are limitations with this rule as well, in particular the need for there to be an existing dispute before it can apply, and therefore it will not be an available avenue in every case.

Key takeaways

The Tarbuc case serves as a useful corrective to any over-expansive view of section 111A. For both practitioners and employers, the message is clear: while protected conversations remain a valuable tool, they are not a risk-free environment. Careful handling, both in substance and process, remains essential.