In Tarbuc v Martello Piling Ltd the Employment Appeal Tribunal found that evidence from pre-settlement negotiations must be considered in cases where multiple claims are brought, even if one of those claims is unfair dismissal where they would ordinarily be inadmissible as evidence.
Facts
The claimant was employed as an estimating engineer from 2018 until 2024. Towards the end of their employment, they were called into a meeting unexpectedly by their employer. They were not given warning of this meeting ― they were asked to attend in a corridor shortly before the meeting ― and they did not have time to arrange for a companion to come with them. At the meeting, the claimant was presented with a settlement proposal. They were told they would likely come last in any redundancy process if they declined the offer. The claimant was then made redundant.
The respondent characterised the meeting as a protected pre-termination negotiation. The claimant claimed ordinary unfair dismissal, discrimination based on part-time worker status and unlawful deductions from wages.
Employment Tribunal (ET)
Before the ET, the claimant submitted that the meeting was not protected, as the respondent’s conduct had been “improper”. The improper conduct, alleged by the claimant, was their manager’s actions in telling them they would go ahead with a redundancy if they rejected the settlement offer and that they were likely to score the least of all those in their scoring group.
However, the claimant’s position was rejected by the ET, which said that there was no improper conduct on the part of the respondent. In making this decision, it focused solely on how and what was said during the meeting. As a result, the ET ruled that the details relating to that conversation were not admissible in any part of the claimant’s case ― even the parts that did not relate to unfair dismissal.
Employment Appeal Tribunal (EAT)
The claimant appealed, arguing that the ET was legally wrong to find that the evidence from the meeting, in which the protected conversation happened, was inadmissible for all the claims they had brought, as the protection offered under the relevant legislation applies to claims for unfair dismissal rather than to all claims. The claimant argued that the ET failed to recognise that the protections were expressly excluded for claims other than ordinary unfair dismissal.
Before the Employment Appeal Tribunal (EAT), both parties agreed that the ET had erred in law in failing to recognise that the protection did not apply to the claimant’s unlawful deduction from wages claim, or to the claim of less favourable treatment as a part-time worker. The EAT agreed. The law only gives protection from admissibility in ordinary unfair dismissal cases. There is nothing to stop the same evidence being admissible in other claims running alongside ordinary unfair dismissal ― it is not uncommon for ETs to have to compartmentalize in that way. The conversation in the protected conversation meeting should have formed part of the evidence for the part-time workers and unlawful deductions claims. The case was remitted back to the ET and the EAT held that the relevant documents must be disclosed to the ET which considered the case.
The claimant also argued that the ET failed to fully consider the Code of Practice on Settlement Agreements when reaching its decision on improper conduct. In particular, it failed to consider the cumulative effect of the conduct of the respondent, including the claimant being ambushed in the corridor, not being afforded sufficient time to secure a companion to accompany them to the meeting and the short timeframe they were given to consider the offer. The claimant argued that this went against the principle in the code that a protected conversation should be voluntary and non-coercive.
Again, the EAT held that the ET had erred. The issue of improper conduct was therefore remitted to a differently constituted tribunal.
