‘Protected conversations’ are a commonly used tool in the savvy employer’s toolbox.  When conducted appropriately, they allow the employer and employee to speak ‘off the record’ about the potential termination of an employee’s employment on agreed terms.  Sometimes, an agreed termination is the preferred outcome for both sides, when otherwise they might be facing a protracted performance management or disciplinary procedure which neither side relishes.  However, the recent case of Tarbuc v Metro Piling has underlined the importance of employers ensuring they conduct these conversations in the right way to avoid potential problems.

Mr Tarbuc’s case and the Employment Tribunal's decision

Mr Tarbuc had been employed by Metro as an engineer for 6 years when he was invited to a meeting, out of the blue, and offered a financial package in relation to the termination of his employment.  He was told that in the absence of a deal, he was likely to be dismissed by reason of redundancy.  At the point at which this meeting took place, no consultation and no selection process had been instigated or undertaken.  Mr Tarbuc declined Metro’s offer.  Instead, he was dismissed, and he subsequently brought claims against the company for unfair dismissal and part-time worker discrimination.  

As part of the legal proceedings, an issue arose as to whether Metro had behaved correctly in the manner in which it conducted its ‘protected conversation‘ with Mr Tarbuc; alternatively, had there been any ‘improper conduct’ on the part of the company? In the absence of ‘improper conduct’, the discussions which took place at their previous meeting could be inadmissible as evidence in support of Mr Tarbuc’s claims.  

Having considered the evidence, the Employment Tribunal found no ‘improper conduct’ on the part of Metro.  As a result, the ET refused to take into account the matters discussed at the original meeting when assessing Mr Tarbuc’s claims.  

Mr Tarbuc appealed.

The Employment Appeal Tribunal's decision 

The EAT overturned the tribunal’s decision.  The law is clear that evidence from a ‘protected conversation’ can only be declared inadmissible as evidence in relation to claims of ‘ordinary’ unfair dismissal.  As a result, it was evidently wrong for the ET to refuse to take account of the content of the ‘protected conversation’ in relation to any of Mr Tarbuc’s other claims, whether there was ‘improper conduct’ or not. 

Moving on, the EAT was also critical of the tribunal’s focus solely on what was said at the meeting, rather than the circumstances of the round.  Mr Tarbuc had raised concerns about being (i) ‘ambushed’ by the meeting and (ii) denied the opportunity to be accompanied.  Neither of these factors was properly taken into account when the ET assessed Metro’s behaviour. Ultimately, the EAT concluded that the case should be sent back to the Employment Tribunal for these matters to be looked at again.

Need our help?

This case is a timely reminder of the need to tread carefully when engaging in a ‘protected conversation’ with an employee.  Particular thought and forward planning needs to be given to both the offer you want to make and, almost as importantly, how you intend to make it. 

If you’re thinking of conducting a ‘protected conversation’ with one of your employees and you want to better understand the process, please get in touch.  We’d be happy to help.