Where a ‘protected conversation’ is pleaded, a tribunal must consider all the points...
Protected conversations and improper behaviour
Where a ‘protected conversation’ is pleaded, a tribunal must consider all the points of impropriety raised, both from the employer and from the employee.
Background
Mr Tarbuc worked for MP Ltd from February 2018 until his dismissal, purportedly for redundancy. Before dismissal, the managing director, M, held a meeting with Mr Tarbuc to discuss the redundancy proposal. Mr Tarbuc complained that M threatened him with redundancy if he refused a settlement offer, that the meeting had been sprung on him without notice or the opportunity to bring a companion, and that he was only given five days to consider the offer.
Following his dismissal, Mr Tarbuc brought claims of unfair dismissal, unauthorised deductions from wages and part-time worker discrimination. Resisting the claim, MP Ltd relied on s.111A of the Employment Rights Act 1996, which provides that evidence of pre-termination negotiations is inadmissible in unfair dismissal proceedings (so-called ‘protected conversations’). However, the legislation denies this protection to an employer if anything was said or done which in the tribunal’s opinion was improper or was connected with improper behaviour.
The tribunal rejected Mr Tarbuc’s argument and held that s. 111A applied. It directed that the fact and content of the protected conversation were inadmissible, that documents relevant to it need not be disclosed and all references to the meeting be excluded from the proceedings as a whole. Mr Tarbuc appealed to the EAT.
EAT decision
The appeal was allowed and sent back to a different tribunal to reconsider.
First, the tribunal had simply got the law wrong on s. 111A. The section applies only to ordinary unfair dismissal claims. It therefore had no application to Mr Tarbuc’s claims for unauthorised deductions or less favourable treatment as a part-time worker.
Secondly, when looking at whether protection is excluded due to improper behaviour, the tribunal needs to consider all the points of impropriety raised. The tribunal had focused only on what was said during the meeting and how it was expressed. It failed to consider the wider context, including Mr Tarbuc’s allegation that he had been taken by surprise, not given the opportunity to be accompanied, and effectively ‘ambushed’. By failing to engage with these elements of Mr Tarbuc’s case, the tribunal had erred in law.
Whilst in Gallagher v McKinnon's Auto and Tyres Ltd the EAT had upheld a tribunal judgment that found ambush hadn’t sufficed to make out improper behaviour, that didn't mean an ambush couldn’t satisfy the legislation in another case, in combination with other conduct. The question of improper behaviour would therefore have to be remitted.
Although the above points disposed of the appeal, the EAT also commented that Mr Tarbuc’s argument that he wasn’t given enough time to consider the settlement offer was misconceived. Whilst the ACAS Code of Practice on Settlement Agreements suggests 10 calendar days to consider a proposed formal written terms of settlement agreement and to receive independent advice, it is not necessarily improper conduct to require agreement to an offer in a shorter period:
- Care should be taken to discern whether what’s asked is agreement more swiftly to the full terms or merely heads of terms.
- It may be relevant to consider the extent to which the timeline actually added pressure.
Therefore, in this case the EAT considered the time period a red herring when giving 5 days to agree heads of terms, but where Mr Tarbuc in fact rejected the terms outright at the meeting itself rather than waiting. The five days offered couldn’t be said to add to the pressure on Mr Tarbuc or any improper conduct by the employer.
Comment
This is a useful case, mainly in in relation to the reference to the time to consider an offer as often employees quote back the ACAS ten calendar days as if it is set in stone. If an employer is asking for agreement in principle in less than ten days then they should perhaps set out why, for instance, if there is a disciplinary hearing pending. Also, if the time period runs during an extended holiday period such as Christmas or Easter, then any shortened time period is less reasonable.