L Tarbuc v Martello Piling Limited

This is my reserved judgment, albeit produced at speed in view of the trial in this matter in the Employment Tribunal being listed for 26-29 May 2026.

The appellant was the claimant below and I will refer to him as such. He was employed by the respondent as an Estimating Engineer from 19 February 2018 until he was dismissed on 13 June 2024, purportedly by reason of redundancy, although the reason for dismissal is in dispute.

The claimant commenced a claim in the Employment Tribunal by ET1 filed on 22 August 2024. In his ET1 he ticked the boxes in Section 8 for “unfair dismissal”, “arrears of pay” and “another type of claim”, which he identified as being “less favourable treatment for part-time worker”. He provided narrative further particulars in Section 8.2, which I will come to later.

This appeal before me is against a decision of the London South Employment Tribunal (Employment Judge Wright) given orally at a preliminary hearing on 3 March 2025, with written reasons sent to the parties on 13 March 2025. Judge Wright decided that a conversation between the respondent’s managing director, Mr Macklin, and the claimant on 23 April 2024 was inadmissible by virtue of section 111A(1) of the Employment Rights Act 1996 (ERA 1996) as being what is often referred to as a “protected conversation”. Judge Wright determined that the conversation was not improper so that no part of the conversation was admissible under section 111A(4). Judge Wright made case management directions to the effect that the respondent was not required to disclose documents related to the “protected conversation” and all references to it should be redacted from the pleadings and the bundle.

Subsequent to the decision under appeal, the claimant on 3 April 2025 made an application to amend his claim to include claims of automatic unfair dismissal pursuant to section 103A ERA 1996, subjection to a detriment contrary to section 47B ERA 1996, automatic unfair dismissal under section 104 ERA 1996 for asserting a statutory right to payment of a contractual bonus under section 13 ERA 1996 and also automatic unfair dismissal for asserting his rights as a part-time worker. This amendment application was decided, and refused, by Employment Judge Musgrave-Cohen at a hearing on 4 September 2025, with written reasons sent to the parties on 9 December 2025.

That decision is the subject of a separate appeal by the claimant (EA-2026-000039-RS), which is to be listed for a preliminary hearing before the EAT. In directing that preliminary hearing, Lord Fairley observed that it was arguable that Employment Judge Musgrave-Cohen had erred in law in refusing the claimant’s application to amend his claim to include a section 104 ERA 1996 complaint in relation to assertion of a contractual right to a bonus, although Lord Fairley did not grant permission on that ground because he considered further clarification was required at a preliminary hearing.

There are three grounds of appeal. There was a preliminary issue at the hearing before me as to the precise scope of the first ground of appeal. In the original notice of appeal filed on 22 April 2025, ground 1 had two parts to it: what I shall call “ground 1(a)” that the Employment Tribunal had erred in failing to recognise that his part-time workers less favourable treatment claim and unlawful deduction from wages claim were covered by section 111A(3); and, “ground 1(b)” that the Employment Tribunal had erred in failing to recognise that the four claims that he subsequently sought to add as amendments were covered by section 111A(3). HHJ Beard on the sift granted permission to appeal on both parts of ground 1, but refused permission on the other grounds. The respondent filed an answer to ground 1 on 3 July 2025.

The claimant renewed his application for permission to appeal under rule 3(10). That application was heard by HHJ Russell on 26 January 2026. The claimant was represented at that hearing by counsel under the ELAAS scheme who put forward draft amended grounds of appeal on his behalf. HHJ Russell granted permission on what are now amended grounds 2 and 3 as they were set out in writing afterwards by the ELAAS representative in the order sealed by the EAT. The draft prepared by the ELAAS representative included an amended ground 1 which corresponded to ground 1(a) and omitted ground 1(b). Paragraph 2 of HHJ Russell’s order states: “The draft amended grounds of appeal lodged on behalf of the Appellant are approved and replace the existing grounds”. The respondent filed an answer to grounds 2 and 3 on 18 February 2026.

The claimant in his skeleton argument for this hearing set out his case by reference to the original ground 1 as it was in his notice of appeal, albeit with ground 1(b) focused only on his putative section 104 claim in relation to having asserted a statutory right in relation to a bonus. Mr Keith’s skeleton argument for the respondent responded to the argument on that basis.

Two days before the EAT hearing, I arranged for the parties to be supplied with a copy of the Court of Appeal’s decision in Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185, [2025] ICR 1231 (Moustache) because it seemed to me to be relevant to ground 1(b). In response to that, both parties provided further written submissions on Moustache. Mr Keith in his submissions raised as a preliminary issue the objection that ground 1(b) was not part of the grounds of appeal by virtue of HHJ Russell’s order, but nonetheless went on to deal with it in his submissions.

I discussed the position with the parties at the start of the hearing and invited them to address me on whether the claimant should be given permission to re-amend his grounds of appeal if that were necessary. The claimant explained that he had not realised that the ELAAS counsel had amended his ground 1, hence why he had conducted proceedings as he had and not made an application to re-amend previously. The respondent as a result of this discussion accepted that there was no real prejudice to it in the claimant being permitted to pursue the grounds of appeal as advanced in his skeleton argument. I was satisfied that it was appropriate to grant permission to re-amend the grounds of appeal. Ground 1(b) (as refined by the claimant in his skeleton argument) was arguable and the parties were in reality ready to deal with it. I was satisfied that it was only mistake or oversight that had led to Ground 1(b) ceasing to be part of the grounds of appeal. It was in the interests of justice to permit the re-amendment so that the grounds of appeal matched the claimant’s arguments as set out in his skeleton argument, to which the respondent had responded.

The three grounds of appeal for me to consider are accordingly as follows. The words in italics are added by me to reflect the re-amended ground 1, which I have divided into grounds 1(a) and 1(b):

Section 111A of the ERA 1996 provides as follows:

Section 104 of the ERA 1996 provides as follows:

ACAS has produced a Code of Practice on Settlement Agreements (under section 111A of the Employment Rights Act 1996) (2013). As the Code itself explains, as it was issued under Section 199 of the Trade Union and Labour Relations Consolidation Act 1992, a failure to follow the Code does not in itself give rise to freestanding liability, but Employment Tribunals should take it into account where they consider it to be relevant to any issue in the case. So far as material to the present case, the Code of Practice includes the following:

The inadmissibility of evidence under section 111A is confined to “proceedings on a complaint under section 111”, that is, ordinary unfair dismissal. It does not apply to other claims: Faithorn Farrell Timms LLP v Bailey [2016] IRLR 839 (Faithorn) at [38] per Eady J. In Basra v BJSS Ltd [2018] ICR 793 (Basra)Choudhury P at [26] explained the effect of the section as follows:

A third EAT decision is particularly relied on by the parties in this case: Harrison v Aryman Ltd UKEAT/0085/19 (Harrison), a decision of HHJ Auerbach. At [25] of Harrison, HHJ Auerbach referred to Faithorn and summarised the key points of that case in much the same way as Choudhury P did in Basra. In particular, he observed “that where there are mixed claims Section 111A will apply to a claim of unfair dismissal, unless it is one of automatic unfair dismissal, but not to the other claims, so that the Tribunal may have regard to evidence excluded by Section 111A in relation to the unfair dismissal claim for the purpose of determining the other claims”. There has been some suggestion in this case as a result of a sentence in HHJ Beard’s reasons for granting permission on the original ground 1 that HHJ Auerbach in Harrison held that if section 111A(3) or (4) applies in relation to any claim in the proceedings, the whole of section 111A will not apply in relation to any claim. That suggestion was based on a sentence in [34] of Harrison, where HHJ Auerbach makes certain observations about the “architecture” of section 111A, including noting that, whereas if section 111A(3) applies the whole of section 111A(1) will not apply, if section 111A(4) applies, then section 111A(1) only applies to the extent the Tribunal considers just. Those were pertinent points, but HHJ Auerbach was not thereby intimating any disagreement with the plain effect of section 111A, as described by Eady J in Faithorn and Choudhury P in Basra, as being claim-specific, so that where there are claims to which section 111A(1) applies and also claims to which it does not, or claims to which section 111A(3) applies, the Tribunal will need to “compartmentalise” the evidence and consider the evidence of the pre-termination negotiations only in relation to the claims in respect of which it is permitted to do so.

I need to say more about Harrison now because it is a case that is close to the present in terms of an issue that it raised. In Harrison there were claims that the dismissal was unfair and also an act of pregnancy discrimination. The judge had proceeded on the basis that section 111A applied to the unfair dismissal and sex discrimination claims without considering section 111A(3) and (4). Both parties were represented by counsel before the Employment Tribunal in that case, but neither counsel had referred to sections 111A(3) or (4) either. HHJ Auerbach nonetheless held that the judge had erred in failing to raise sections 111A(3) and (4) for consideration of his own motion in circumstances where: (a) the claim was that pregnancy was the reason for the dismissal, which is an automatically unfair reason, albeit that the claimant’s pleadings had not identified it as such; and (b) there was material in the pleadings raising a case of improper conduct.

What HHJ Auerbach says about the automatic unfair dismissal claim and section 111A(3) is particularly relevant to the present case (emphasis added):

The final case on section 111A relied on by the parties is Gallagher v McKinnon’s Auto and Tyres Ltd [2025] IRLR 112 (Gallagher), a decision of Judge Barry Clarke. In that case, the EAT upheld a decision by the Employment Tribunal that there had been no improper behaviour. The claimant’s arguments before the EAT in that case were summarised in the headnote as follows:

The EAT dismissed the appeal. Judge Clarke noted that the Employment Tribunal had had regard to paragraph 18(e)(ii) of the Acas Code and had concluded as a matter of fact that the directors had not closed their minds to what would happen if the claimant rejected the settlement proposal, and, further, that they had not told him that he would be dismissed, only that a redundancy process would commence. The EAT found that the Employment Tribunal had taken a nuanced approach to the employer’s lie about the purpose for the meeting, and balanced that against all the surrounding circumstances. As to the period of time for considering the proposal, the Employment Tribunal had noted that the period of 48 hours only related to acceptance or not of the verbal offer, not the proposed settlement agreement and found it did not constitute undue pressure. Judge Clarke observed that a different judge might have taken a different view. Judge Clarke further added at [43]:

Harrison was decided before the Court of Appeal’s decision in Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185, [2025] ICR 1231. The facts of that case may be taken from the Headnote:

The Court of Appeal reversed the decision of the EAT, holding that the employment tribunal had not erred in failing to identify and determine the further claim. Warby LJ gave the judgment of the Court. At [33]-[38] he made “four general points” and then went on to set out the established principles relating to the extent to which a judge may give, or be expected to give, assistance to the parties in relation to their cases:

The Court of Appeal reviewed a number of the other authorities on the question of identifying pleaded claims. At [44]-[46], the Court referred to, and did not disapprove or doubt, the decision of the Court of Appeal in Mervyn v BW Controls Ltd [2020] ICR 1364 in which the Court of Appeal determined, reversing the judgment of Laing J in the EAT, and adopting the language of HHJ Auerbach in McLeary v One Housing Group Ltd UKEAT/124/18 (unreported) 6 February 2019, EAT that it ‘shouted out’ from the contents of the claimant’s particulars in that case that she was alleging constructive dismissal, albeit that it had been omitted from a list of issues. At [44] the Court of Appeal cited, with apparent approval, the dictum of Laing J in EAT in that case that:

Warby LJ at [46] characterised the decision of the Court of Appeal in Mervyn as being one of those “exceptional” cases described by the Court of Appeal in Scicluna v Zippy Stitch [2018] EWCA Civ 1320, where a Tribunal would be under a duty to depart from an agreed list of issues.

In Moustache, the Court of Appeal considered the EAT had erred in dealing with the case as if it was such an exceptional case for the reasons given in Warby LJ’s judgment at [53]-[55]. In particular, the Court of Appeal considered it significant that the discrimination box had not been ticked in section 8.1 of the ET1 and that the failure to tick the box was to be given weight because the claim was by “an articulate professional woman who had recently demonstrated an understanding of the concepts of discrimination and disability”, having “deployed both in her first claim”. Further, at ([56]), “Although the ET1 referred to the employee being signed off sick from work “due to anxiety stress and panic attacks due to my work situation” it did not “clearly assert that this was the reason for her dismissal or even a reason”, nor did it “shout out” or make “any clear assertion to the effect that the employee’s mental state amounted to a disability”.

In considering the decision of the Employment Tribunal, the EAT applies the well-established principles summarised in the Court of Appeal’s decision DPP Law Limited v Greenberg [2021] IRLR 1016 at [57]-[58]:

The Employment Tribunal preliminary hearing before Employment Judge Wright on 3 March 2025 was the first hearing in these proceedings. The date was originally listed as the first day of a two-day final hearing, the Employment Tribunal apparently having given standard directions previously for the case to go straight to final hearing without any preliminary hearing. However, shortly in advance of the hearing, the parties tell me that an Employment Judge reviewed the file and converted the hearing to a preliminary hearing to deal with the section 111A issue, an application by the claimant for specific disclosure and other case management issues.

I have already set out above that the claimant in his ET1 filed on 22 August 2024 had ticked the boxes in Section 8.1 for “unfair dismissal”, “arrears of pay” and “another type of claim”, which he identified as being “less favourable treatment for part-time worker”. The narrative particulars in Section 8.2 were arranged under three headings: “Unfair Dismissal Claim”, “Unpaid Wages Claim” and “Less favourable treatment for being part-time worker claim”. The last bullet point under the “Unfair Dismissal Claim” identified that the claimant was asserting that part of the reason why he was dismissed was because he was part-time worker. The last three bullet points under “Unpaid Wages Claim” stated (emphasis added to show the words particularly relied on by the claimant in relation to ground 1b):

The respondent in [7] of its ET3 relied on section 111A in stating that pre-termination negotiations took place with the claimant that were inadmissible. The respondent denied any improper conduct.

The claimant in a witness statement dated 5 February 2025 challenged the respondent’s reliance on section 111A. His witness statement sets out a detailed chronology of events regarding his seeking of his contractual bonus, the 23 April 2024 meeting that was said to be a “protected conversation” and the subsequent redundancy process and dismissal. Regarding his request for payment of his bonus and what immediately followed, his statement included the following:

At paragraph 15, the claimant set out the reasons why he submitted the 23 April conversation was not a “protected conversation” as follows:

The witness statement concluded with a request by the claimant that the Tribunal direct the parties to agree a list of issues (pp 144-145).

Mr Macklin for the respondent filed a witness statement in response to the claimant’s. So far as material, it included the following as regards the 23 April 2024 meeting:

The claimant has obtained a full transcript of the hearing before Employment Judge Wright on 3 March 2025, which took place by video. From that, it can be seen that the hearing began with consideration of the section 111A issue. The claimant gave evidence on oath and was cross-examined by Mr Keith, then Mr Macklin gave evidence and was cross-examined by the claimant. The judge gave the parties each five minutes to make submissions on that issue. After a break the re-listing of the final hearing for four days was discussed and then there was a short discussion of the issues (page 30).

The following matters in the transcript are of particular relevance to this appeal:

The judge gave an oral judgment on the section 111A issue after the lunch break. Written reasons for that decision were provided on 13 March 2025, together with a case management order which, among other things: (i) listed the final hearing for 26 May 2026 to 29 May 2026; (ii) refused the appellant’s request for specific disclosure of documents relating to the section 111A protected conversation; and (iii) set out a list of issues.

Employment Judge Wright’s written reasons begin, after a short introduction, by setting out [3]-[13] of Gallagher.

The material part of the reasons is short and for convenience I set it out in full:

Both parties provided me with very helpful written and oral submissions. I do not set out here a separate summary of their submissions, but deal with the principal planks of their arguments in setting out my analysis and the conclusion I have reached in relation to each ground of appeal.

The parties are in agreement, and there is no doubt, that the judge erred in law in failing to recognise in [13] of her decision that section 111A does not apply to the claimant’s unlawful deduction from wages claim, or to his claim of less favourable treatment as a part-time worker. Accordingly, she erred in directing that all references to the protected conversation should be redacted from all the documents in the hearing bundles, and refusing the claimant’s application for specific disclosure of related documents. Were this the only ground on which this appeal succeeds, it would leave the Tribunal with a very difficult task of analytical compartmentalisation in this case (to use Choudhury P’s term from Basra). The documents would remain inadmissible in relation to the ‘ordinary’ unfair dismissal claim. However, the claimant’sclaim of less favourable treatment as a part-time worker is that he was selected for redundancy, and this alleged treatment is also relied on as rendering the dismissal unfair. The mental gymnastics required for any Tribunal to decide this case properly applying section 111A if ground 1(a) were the only ground to succeed would therefore be very challenging. The parties and Tribunal may (or may not) be spared that difficulty, depending on the decision that the Employment Tribunal makes in the light of the outcome of this appeal.

In the light of the legal principles established in the authorities on identifying issues (see above paragraphs 22 to 26), the question that arises under this ground is whether the claimant had in his ET1 pleaded the factual basis of a claim of automatic unfair dismissal under section 104 ERA 1996 and, if so, whether Judge Wright erred in law in failing to raise that possibility with the parties. The claimant goes further and suggests that the judge was bound to find that he had made such a claim and thus to disapply section 111A by virtue of section 111A(3).

I have to assess whether or not Judge Wright made an error of law by reference to the position as it was at the hearing on 3 March 2025. The fact that the claimant subsequently made an express application to amend his claim to include such a claim, and that was refused by Employment Judge Musgrave-Cohen, cannot change the analysis one way or another, albeit that I can take those subsequent events into account insofar as they cast light on the position as it was before Employment Judge Wright on 3 March 2025.

I have to consider, first, whether the ET1 includes the factual basis for such a claim. Employment Judge Musgrave-Cohen when considering the application to amend considered that it did having considered the pleading in detail in response to an application to amend, and approached the amendment decision supposedly on the basis that it was a “re-labelling” exercise. However, as I have said, I have to assess this afresh and objectively. Secondly, as the question is whether Judge Wright should have identified and raised this possible claim of her own motion, the fact that the factual elements of the claim may be in the ET1 when it is carefully scrutinised (so that any amendment required will merely be re-labelling) is not necessarily enough. In accordance with the well-established approach, re-stated by the Court of Appeal in Moustache, I have to consider whether the ET1, read in the context of the appellant being a litigant in person with no legal qualification, can readily be understood (“at its first reading” was how Laing J put it in Adebowale, quoted at [35] of Moustache; ‘shout out’ is the other term used), as including the claim in question.

The necessary elements in the pleading of a section 104 claim are:

The claimant relies on the bold bullet point under the heading of “Unpaid wages claim” (see above paragraph 29). The respondent submits that this does not include the factual elements of a section 104 claim because: (a) there is no allegation of infringement of a right, just a request to be paid; and (b) the connection with the dismissal is pleaded as being chronological rather than causal. I agree with the respondent on point (a), but not on point (b). As to point (a), the pleading states merely that he ‘requested’ his contractual bonus. It does not state that he asserted to his employer that the employer had breached any right of his. It sets out the basis of an unlawful deduction from wages claim, as one would expect given that the bullet point comes under that heading in the pleading, but it does not include a pleading that there has been an assertion of infringement as required for a section 104 claim (or words to similar effect). Further, although there is no ambiguity in the pleading on this point, I note that Employment Judge Musgrave-Cohen when dealing with the amendment application took the view that the documents relied on by the appellant as the assertion did not meet the statutory requirements either.

On point (b), although the words “After requesting my contractual bonus…” are capable of indicating a chronological link or a causal link, I read the bullet point as a whole objectively as indicating a causal link in the context of this case. If there is any ambiguity, then it seems to me that the general prohibition on looking to material other than the ET1 would need to be relaxed in order to resolve it. It is not necessary to look far in this case to see the claimant has evidently felt from the outset that his request for his bonus was a cause of his dismissal – as noted above, that was a focus of his cross-examination of Mr Macklin at the preliminary hearing, and Mr Macklin essentially accepted there was a causal relationship between the two. Indeed, Judge Wright herself had evidently understood that was the claimant’s case too: see paragraph 36(e) above.

Because point (a) is not in the pleading, this is not a case like Harrison where the factual basis of the automatic unfair dismissal claim was in the ET1 and an amendment application would ‘inevitably’ have been granted. (Nor, indeed, was the amendment application granted when it was subsequently made, albeit that the judge’s reasons for refusing the amendment may prove to have been flawed.)

As I have decided that the factual basis of the section 104 claim is not in the ET1, I do not strictly have to go on to consider whether Employment Judge Wright erred in raising the possibility of amending to include that claim with the claimant of her own motion. However, I add that, even if I had found the factual elements of the claim were included in the ET1, I would not have concluded in this case that the judge erred in law in failing to identify the claim (or potential claim) of her own motion.

As I have indicated, there is a difference between what is required of a pleading before a judge will be expected to identify an unlabelled legal claim of their own motion, and what claims may, on very careful scrutiny, turn out to be factually in a pleading so that any amendment application must be dealt with as a re-labelling exercise.

In this case, the claimant is in some ways a victim of his own skill in presenting legal arguments. I have observed that he has a quite remarkable facility for grasping legal principles and arguments and presenting them as a lawyer would which is all the more impressive given that English is not his first language. However, as a result, his documents give an impression that he is more competent and knowledgeable than he is. He is not a lawyer and he is evidently learning the law as he has gone along in these proceedings. Nonetheless, the impression of competence affects the way his ET1 is objectively construed. His ET1 presents, exceptionally clearly, the three claims that were identified by the judge and the respondent. Although he included the less favourable treatment as a part-time worker allegations in both the unfair dismissal and part-time worker discrimination sections, thus making clear that he considered that treatment formed part of the reason why the dismissal was unfair, he did not do the same for the bonus issue. Nor, as I have noted, did he plead (or, if I am wrong about that, nor did he plead clearly) that he had asserted the factual basis of a claim for infringement of a statutory right in response to which he had been dismissed. This was not a claim that “shouted out” from the pleadings. The judge did not err in law in failing to identify and raise it with the parties of her own motion. Ground 1(b) therefore fails.

The claimant submits, in short, that when considering whether or not there was improper conduct by the respondent, the Employment Tribunal failed to consider all these matters as they are not mentioned in the material part of its reasons set out at paragraph 39 above. The respondent submits that I need to apply the Greenberg approach. The Employment Tribunal properly directed itself as to the law by setting out the passage from Gallagher and can be assumed to have applied it. The respondent further submits that Gallagher shows that being ambushed by a meeting and having little time to consider a settlement proposal are not sufficient to constitute improper conduct.

On this ground, I agree with the claimant. Although I am prepared to accept that, because the Employment Judge quoted the passage from Gallagher that refers to the Acas Code of Practice, she did not leave the Code wholly out of account, the Employment Judge has approached the question of whether there was improper conduct by reference solely to the question of what Mr Macklin said in the meeting, and how he said it. She has not in her reasons even mentioned the way in which the meeting was called or the failure to allow the claimant a companion. These were matters that the claimant had specifically advanced in his witness statement for the hearing as being part of why he said there was improper conduct: see paragraph 32 above. Although I note from the transcript of the hearing that the claimant did not specifically allude to these points again in his closing submission, it is evident from the transcript that the Judge was seeking to hurry the parties at that point, gave them only five minutes to make their submission and interrupted the claimant (properly) when he appeared to start talking about legal advice. I do not criticise the Judge’s conduct of the hearing in these respects, but it does mean that I do not consider it was open to the Judge to regard the claimant as having reduced his case on improper conduct only to what he managed to say in closing submissions rather than taking account of the case he had advanced in his witness statement.

Moreover, it does not follow that because an ‘ambush’ meeting and failure to allow an employee time to bring a companion were insufficient to persuade the Employment Tribunal in Gallagher that conduct was improper, and the EAT accepted the Tribunal had not erred in so concluding, that such matters will not be sufficient in other cases, in combination with other conduct. It is apparent from Judge Clarke’s decision in Gallagher that the Employment Tribunal’s decision in that case survived challenge on appeal because the Employment Tribunal’s reasons were ‘nuanced’ and all relevant matters had been considered and expressly dealt with in the reasons. That is not the position in this case. I am satisfied that the Employment Tribunal erred in law as contended in ground 2 by failing to consider the full circumstances and failing to give adequate reasons for its conclusions that dealt with the main elements of the claimant’s case.

In reaching this conclusion, I have deliberately not mentioned the argument that the claimant now raises on this appeal about the length of time that he was given to consider the respondent’s offer. That is because this point seems to me to be something of a ‘red herring’ in this case. The claimant rejected the respondent’s offer outright at the meeting, so it cannot be said that the period of 5 days offered in the letter presented at the meeting (which the claimant did not read) added to any pressure on the claimant or any improper conduct by the respondent. Further, the recommendation in paragraph 12 of the Acas Code of Practice is for 10 calendar days to consider the “proposed formal written terms of a settlement agreement and to receive independent advice”. The respondent’s 23 April 2024 letter was not the formal written terms of a settlement agreement, it set out proposed “heads of terms” and envisaged that a formal settlement agreement would follow if the “heads of terms” were agreed.

Nonetheless Ground 2 succeeds for the reasons I have given.

Given my conclusion on ground 2, this ground becomes unnecessary as the question of whether there was improper conduct will need to be re-visited. However, in view of certain factual points that became clear in the course of the hearing before me, I record that I do not consider this aspect of the Tribunal’s conclusion was perverse.

The claimant is right that it became clear in cross-examination of Mr Macklin that there was no “script” for the meeting on 23 April 2024 as that term is normally understood. What Mr Macklin meant by the “script” turned out to be the letter that he presented to the claimant in an envelope at that meeting. The claimant is also right that Mr Macklin did not in his witness statement or in oral evidence specifically state that he had taken advice in respect of the meeting and that he followed that advice. The claimant is also right that it is apparent from Mr Macklin’s oral evidence that he raised with the claimant in that meeting many aspects of the claimant’s performance that he considered to be unsatisfactory and that this means that Mr Macklin cannot have been precisely following any advice he had received.

However, it is plain from [10] of the Employment Judge’s reasons that she had grasped all those points (or, at least, her reasons are not inconsistent with all of those points being true). Paragraph [10] does not suggest that Mr Macklin read from a script and it refers to Macklin’s evidence about discussing with the claimant all the matters of concern as regards his performance. Beyond that, the judge was entitled to form her own view of a witness (that he was “measured and had a clear understanding of the purpose of s. 111A ERA”) and also to draw reasonable inferences from the evidence. The inference that Mr Macklin had “taken advice in respect of the meeting” and “clearly followed that advice” is one such. Mr Macklin had confirmed that the 23 April 2024 letter was given to him by HR advisors (although he wrongly described it as a “script”), the letter has all the hallmarks of being drafted by advisors and includes in the last paragraph a reference to the company’s “employment law advisors”. It is also a reasonable inference that Mr Macklin followed the advice he had received in holding the meeting, giving the claimant the letter and raising with him the matters in that letter, even if he also covered other matters.

Ground 3 therefore fails.

For the reasons set out above, Ground 1(a) succeeds (by consent), Ground 1(b) fails, Ground 2 succeeds and Ground 3 fails.

In view of the proximity of the trial of this matter both parties (to a greater extent in the case of the claimant) urge me if the appeal succeeds to exercise the powers of the employment tribunal, to decide any issues I can for myself and to make directions for the further case management of the Employment Tribunal proceedings.

So far as Ground 1(a) is concerned, I can do that. As the respondent accepts, the documents relevant to the “protected conversation” now need to be disclosed (if that has not already happened) and will need to be considered by the Tribunal in relation to the unlawful deduction from wages and part-time workers claims. I am content to make that direction since it is a direction that must be made and therefore it is appropriate for me so to direct (see Jafri v Lincoln College [2015] QB 781 at [21] per Laws LJ).

The respondent suggested that I should direct a split trial whereby the unfair dismissal claim is determined first and only then is the Employment Tribunal shown the documents relevant to the “protected conversation”. However, given that: (i) the claimant relies on his allegations of less favourable treatment as a part-time worker in support of his unfair dismissal claim in respect of which section 111A does not apply; and (ii) Ground 2 has also succeeded so that the question of improper conduct also needs to be re-determined, I am not willing to make any such direction to the Employment Tribunal. These are matters of evidence handling and time management that must be for the Employment Tribunal to determine.

It may be, if the parties agree (or the Employment Tribunal considers it appropriate so to direct), that the pragmatic solution in this case is for the trial to go ahead on all claims on the basis of all the evidence, and for the Tribunal to take a decision at the end of it as to whether there has been improper conduct and therefore whether it needs to exclude the material relating to the protected conversation from consideration when reaching its conclusion on the unfair dismissal claim. This may, as I noted previously, require some difficult mental gymnastics, but Tribunals do frequently have to engage in such gymnastics when questions of admissibility of evidence arise; the difficulty should not be insuperable.

Although there is no reason to doubt the professionalism of Employment Judge Wright, this case on remission should be listed before a different judge.