Why an ‘off the record’ meeting can still end up in tribunal evidence

‘Off the record’ meetings, formally known as protected conversations and/or without prejudice conversations, are discussions between an employer and an employee where they discuss ending the employment on agreed terms.

They can be a positive way of resolving workplace disputes; however, protected conversations and without prejudice conversations are not always as protected as you think, as shown in the recent case of Tarbuc v Martello Piling Ltd [2026] EAT 58.

What is a protected conversation?

Section 111A of the Employment Rights Act 1996 (ERA) permits employers to have confidential pre-termination negotiations without the discussion being used as evidence later. Pre-termination negotiations include protected conversations and without-prejudice discussions.

Protected conversations can be used effectively to bring an employment to an end without further conflict. They cannot be used in future proceedings, including unfair dismissal or constructive dismissal claims.

What is a without prejudice conversation?

A ‘without prejudice’ conversation is a discussion which takes place in a genuine attempt to settle an existing dispute. As with protected conversations, those negotiations cannot usually be relied on as evidence in court or tribunal proceedings if the parties do not reach an agreement. The idea is that they are kept confidential and ‘off-the-record’.

The key difference between without prejudice conversations and protected conversations is that without prejudice conversations normally require there to be an existing dispute between the employer and employee. By contrast, a protected conversation under section 111A can apply even where there is no existing dispute, but its protection is more limited and generally only applies when considering ordinary unfair dismissal claims.

What happened in Tarbuc v Martello Piling Ltd?

Mr Tarbuc was invited by the managing director of Martello Piling Ltd to a meeting described as a protected conversation. He alleged that, during the meeting, the managing director made a settlement offer and said that if he did not accept it, he would be made redundant.

Mr Tarbuc was later dismissed, and he made claims against Martello Piling, including unfair dismissal, unlawful deductions from wages and less favourable treatment as a part-time worker.

At first, the Employment Tribunal held that section 111A of the ERA applied (i.e. the protected conversation could not be used in evidence) and so references to that conversation were to be taken out of the evidence and pleadings. Mr Tarbuc appealed this decision.

The appeal

Mr Tarbuc appealed this decision.

There were two key takeaways from the Employment Appeal Tribunal’s (EAT) decision at the appeal:

1. Section 111A of the ERA doesn’t cover everything

The EAT stated that the tribunal had misapplied section 111A of the ERA by treating evidence of a protected conversation as inadmissible for all of Mr Tarbuc’s claims. Whereas section 111A should only apply to ordinary unfair dismissal claims. It does not automatically provide protection from other claims, including unlawful deductions from wages, discrimination claims, whistleblowing claims, automatic unfair dismissal claims or other statutory claims.

The fact that protection under section 111A is confined to ordinary unfair dismissal proceedings means that the same evidence may need to be treated differently across each claim.

2. Context matters: improper conduct is about more than what was said

The EAT held that the tribunal’s approach to improper conduct was too narrow as it focused only on what was said during the conversation itself, rather than considering the full context in which the meeting was arranged and conducted. The manager also failed to allow a companion to attend.

The Judge emphasised that an ambush meeting or failure to allow a companion will not automatically amount to improper conduct, but those matters may be relevant and must be considered in context.

Without-prejudice protection is not absolute

Similarly, even where an existing dispute does exist, without-prejudice protection is not absolute. The tribunal may allow evidence of settlement discussions where there has been unambiguous impropriety, such as fraud, blackmail, perjury or other serious misconduct. Although the threshold is deliberately high, the privilege cannot be used to conceal or protect improper behaviour.

This differs from protected conversations under section 111A. Here, the Employment Rights Act 1996 and the Acas Code of Practice provide that protection may be lost where there has been improper behaviour, including harassment, bullying, intimidation, physical assault or the threat of it, victimisation, discrimination, putting undue pressure on an employee to accept an offer, or failing to allow a reasonable period to consider it.

Employers should therefore take care not only to label discussions correctly, but also to ensure that both without prejudice and protected conversations are conducted fairly and appropriately.

What this means for employers

• Don’t treat protected conversations as a blanket shield from every possible employment claim.
• Get your labels right: is it a protected conversation or a without prejudice conversation?
• Be deliberate and clear about how the meeting is set up. Don’t forget to:
  • Give reasonable notice;
  • Allow a companion to attend if requested; and
  • Give the employee a fair amount of time to respond.
• Keep a record of how the meeting was set up and what was said.
• If you face multiple claims, seek legal advice to establish whether a protected conversation is appropriate or not.

What this means for employees

If a meeting felt like an ambush or you weren’t given a chance to prepare or bring someone with you, this matters. If this has happened to you, it’s important to speak to an employment solicitor as soon as possible.

This case is a useful reminder that protected conversations provide limited and fact-sensitive protection. Employers should not assume that labelling a discussion as a protected conversation will prevent the evidence being relied on in all tribunal claims. Context matters.

Contact our employment law solicitors

If you are considering terminating an employee’s employment in a protected conversation, or you are an employee who believes your employer has not followed proper procedure, get in touch.

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