Disability Discrimination During Workplace Investigations | Griffiths v Essex County Council
An employer's failure to involve an employee in an investigation led to findings of disability discrimination and compensation.
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Case Study
The Employment Appeal Tribunal (EAT) has handed down an important judgment in Tarbuc v Martello Piling Limited. The case serves as a useful reminder that the protection afforded to protected conversations is not absolute and can be lost where an employer’s conduct is scrutinised by a Tribunal.
As a reminder, section 111A of the Employment Rights Act 1996 allows pre-termination negotiations between an employer and employee to be held “off the record”. These discussions often involve the possibility of ending employment under a settlement agreement.
Importantly, the protection only applies to ordinary unfair dismissal claims and does not extend to other types of employment claims. Employers seeking to rely on section 111A must also avoid improper conduct, otherwise the protection may be lost.
Mr Tarbuc was called to a meeting at short notice where he was invited to accept a settlement agreement or face being selected for redundancy. He later claimed he had been “ambushed”, was not prepared for the meeting and was not given the opportunity to be accompanied.
No agreement was reached and Mr Tarbuc was subsequently dismissed by reason of redundancy.
He brought claims for unfair dismissal, unauthorised deductions from wages and part-time worker discrimination. Martello Piling sought to exclude all evidence relating to the meeting, arguing that it was protected under section 111A and therefore inadmissible.
The Employment Tribunal agreed and excluded all references to the discussion. Mr Tarbuc appealed.
The EAT found that the Tribunal had made two significant errors.
First, section 111A protection only applies to unfair dismissal claims. It does not extend to claims such as discrimination or unauthorised deductions from wages. The Tribunal was therefore wrong to exclude the evidence for all claims.
Second, when considering whether there had been improper conduct, the Tribunal focused too narrowly on what was said during the meeting. It failed to consider the wider circumstances, including the allegation that Mr Tarbuc had been taken by surprise and denied the opportunity to bring a companion.
The EAT stopped short of saying that an “ambush” meeting will always amount to improper conduct. It acknowledged that protected conversations are often unexpected and that there is no legal right to accompaniment. However, it emphasised that Tribunals must consider all the surrounding circumstances and explain their reasoning carefully.
The EAT also rejected an argument that a five-day deadline for considering the proposal amounted to undue pressure. As Mr Tarbuc had made clear he would not consider the offer at all, the time limit was not relevant in the circumstances.
Case Study
The case was remitted to a freshly constituted Employment Tribunal for reconsideration.
While the EAT did not determine that the employer’s conduct was improper, it reinforced two important principles. Firstly, section 111A protection is limited to ordinary unfair dismissal claims. Secondly, when assessing whether improper conduct has occurred, Tribunals must consider the full context of the conversation rather than focusing solely on the words used.
This case is a useful reminder that the protection afforded to protected conversations is not guaranteed. Careful planning and handling are essential if employers wish to rely on section 111A protections.
Employers should:
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