Tarbuc v Martello Piling Ltd [2026] EAT 58

In this case, the Employment Appeal Tribunal ("EAT") considered whether a pre-termination negotiation was protected under section 111A of the Employment Rights Act 1996, and whether any such protection had been applied too broadly. Section 111A provides that evidence of pre-termination negotiations is inadmissible in unfair dismissal proceedings, unless there has been improper conduct.

The Claimant was employed by the Respondent as an Estimating Engineer until his dismissal in June 2024, purportedly by reason of redundancy. Prior to dismissal, he was called to a meeting without notice or the opportunity to bring a companion. At the meeting, he was told the Respondent wanted him to leave, and, on the Claimant's account, that if he did not accept the settlement offer, he would be put into a redundancy process and would "come last". The Respondent denied making that threat. The Claimant brought claims for unfair dismissal, unlawful deductions and less favourable treatment as a part-time worker.

The Employment Tribunal (“ET”) found the Respondent's version of events in respect of the settlement offer to be more credible, that the Respondent’s behaviour had not been improper and that s111A applied, meaning that the meeting was a protected pre-termination negotiation. It therefore directed that all references to the meeting be redacted from the ET hearing bundle and all related disclosure be refused across every claim.

The Claimant appealed and the EAT allowed the appeal in part. It held that the ET had incorrectly applied section 111A to all of the Claimant's claims. Section 111A only excludes evidence of pre-termination negotiations in ordinary unfair dismissal proceedings. It does not extend to claims for unlawful deductions from wages or less favourable treatment under the part-time workers regime. By directing that the pre-termination negotiation evidence be redacted from the bundle in its entirety, the ET had wrongly excluded evidence that remained admissible and disclosable for those other claims.

Secondly, the ET was incorrect in its assessment of improper conduct. Although the ET had referred to the ACAS Code of Practice on Settlement Agreements, which provides guidance in this area, it had assessed improper conduct solely by reference to what was said in the meeting. It had not addressed the manner in which the meeting was called (without notice and without permitting a companion) even though the Claimant had specifically advanced this as part of his case. The EAT noted that the equivalent factors had not been sufficient to amount to improper conduct in Gallagher v McKinnon's Auto and Tyres Ltd [2025] EAT 174, but that this did not mean they could never be sufficient in other cases, in combination with other conduct. The ET's failure to address these matters and give adequate reasons was an error of law.

The case is a reminder of the limits of protection under section 111A, which applies only to ordinary unfair dismissal claims and cannot be used to withhold disclosure of the content of a settlement offer where it is relevant to any other claim. An employer preparing to make an offer of settlement to an employee should carefully consider the implications of this gap in protection, and whether “without prejudice” privilege, which applies to an offer of settlement of any type of legal claim, may also be applicable in the specific circumstances. The decision also confirms that the assessment of whether there has been improper conduct must be holistic, encompassing how a meeting is arranged and conducted, not only what is said within it.

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