Overview:
The Employment Appeal Tribunal (“EAT”) has confirmed that an employment tribunal failed to take into account the employee’s complaint about being ‘ambushed’ and not being allowed a meeting companion, when deciding whether there has been “improper behaviour”, for the purposes of Section 111A of the Employment Rights Act 1996.
Background:
Tarbuc (the “Claimant”) was employed by Martello Piling Ltd (the “Respondent”) until his dismissal on purported grounds of redundancy, in June 2024.
Prior to his dismissal, the Respondent’s managing director, (“MD”), held a meeting with the Claimant to discuss the redundancy proposal. The Claimant alleged that the MD threatened him with redundancy if he refused a settlement offer, that the meeting had been sprung on him without notice and no opportunity to bring a companion and that he was only given five days to consider the offer.
Following his dismissal, the Claimant brought claims of unfair dismissal, unauthorised deductions from wages and less favourable treatment of a part-time worker. The Respondent sought to rely on S.111A ERA, arguing that details of pre-termination negotiations were inadmissible.
The employment tribunal found that the meeting was not tainted by improper behaviour within the meaning of S.111A(4). Although the MD had told the Claimant at the meeting that he was dissatisfied with his performance and that he would not score well in a selection exercise, the employment tribunal accepted that MD’s approach was overall measured and that he was attempting to avoid the unrest that a redundancy situation would cause. The employment tribunal directed that all references to the meeting be excluded from the proceedings as a whole.
On appeal, the EAT held that:
- The employment tribunal had incorrectly applied S.111A to all claims. S.111A ERA renders pre-termination negotiations inadmissible in ordinary unfair dismissal only. The details of the meeting were therefore admissible in connection with the unlawful deductions of wages and part-time worker claims.
- The employment tribunal had assessed ‘improper behaviour’ incorrectly, failing to consider the Claimant’s complaints of being ‘ambushed’ without notice and being denied a companion.
- The EAT distinguished Gallagher v McKinnon’s Auto and Tyres Ltd 2025, an earlier case where the EAT upheld an employment tribunal’s decision that an ‘ambush’ meeting and failure to allow the employee time to bring a companion did not meet the threshold for improper behaviour. In the present case, the employment tribunal had failed to consider the full circumstances and to give adequate reasons for its conclusions.
Natalie Reeder comments:
This judgment is a timely reminder of the rules around ‘protected conversations’ under S.111A ERA and the limited scope of its protection (i.e. it will only apply to claims of unfair dismissal). Employers should consider whether any other claims could arise and be mindful that evidence of pre-termination negotiations may be admissible in such other claims.
The judgment is also an important reminder that tribunals consider all relevant circumstances when determining whether there has been any ‘improper behaviour’, meaning details of such conversations may in any event be disclosed. Employers are well advised to act reasonably when conducting such conversations, using moderate language.
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