Ambushes and Admissibility: The Limits of Section 111A ERA 1996

There is a certain type of HR director who views Section 111A of the Employment Rights Act 1996 as a sort of legal invisibility cloak. They imagine that by uttering the magic words "protected conversation," they can descend upon an unsuspecting employee, present a "heads of terms" document, and demand an answer before the kettle has even boiled, all with total immunity from subsequent disclosure in an unfair dismissal claim. It is a bold, if somewhat optimistic, reading of the statute.

The reality is more nuanced. While Section 111A provides a broad shield for "pre-termination negotiations," that shield is porous. It dissolves entirely in the face of "improper behaviour" under s.111A(4), and as the Employment Appeal Tribunal has recently clarified in Tarbuc v Martello Piling Ltd [2026] UKEAT/2026/58, "improper behaviour" is not confined to what is said; it extends to how the stage is set.

In Tarbuc, the claimant was summoned to a meeting purportedly to discuss redundancy. Instead, he was presented with a settlement offer and given five days to consider it. He complained of being "ambushed," denied the opportunity to bring a companion, and threatened with redundancy if he refused. The Employment Tribunal, applying a somewhat blinkered approach, looked only at the manager’s measured tone and the lack of overt threats during the meeting, concluding the conversation remained protected. They excluded all references to it from the proceedings.

The EAT disagreed. It held that the Tribunal erred by focusing solely on the "what" and the "how" of the spoken words, while ignoring the procedural context. An "ambush" meeting—one sprung without notice or the right to a companion—is a relevant factor in the assessment of improper conduct. While the EAT in Gallagher v McKinnon’s Auto and Tyres Ltd [2025] IRLR 112 previously upheld a finding that an ambush meeting did not cross the threshold, that decision turned on the ET’s "nuanced" and comprehensive reasoning. In Tarbuc, the ET simply failed to engage with the ambush at all.

Practitioners should note the EAT’s secondary point: Section 111A is a specialist tool. It renders negotiations inadmissible only in "proceedings on a complaint under section 111"—that is, ordinary unfair dismissal. It has no application to claims for unauthorised deductions or discrimination. In Tarbuc, the ET had excluded the evidence from the entire claim, including a part-time worker discrimination claim. This was a plain error of law, corrected by consent on appeal.

The "ten-day rule" in the ACAS Code of Practice remains a frequent point of contention. In Tarbuc, the five-day deadline given to the claimant was deemed a "red herring" because he had rejected the offer outright at the meeting. Pressure that does not actually press is not improper. However, for employers, the lesson is clear: if you intend to rely on the confidentiality of a settlement discussion, the procedural "wrapping" matters as much as the contents of the gift.

The Section 111A shield is a creature of statute, and statutes are rarely as broad as the HR handbooks suggest. We are reminded once again that the Tribunal’s discretion to admit evidence of "anything said or done" is a powerful corrective to procedural sharp practice.

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