Key Takeaways
There is no general legal right to bring a work colleague or trade union representative to a settlement agreement discussion (also known as a protected conversation). Two recent Employment Appeal Tribunal decisions — Gallagher v McKinnon’s Auto and Tyres Ltd [2024] EAT 174 and Tarbuc v Martello Piling Ltd [2026] EAT 58 — confirm that refusing a companion, or arranging a surprise meeting, is not automatically improper behaviour under Section 111A of the Employment Rights Act 1996.
Is There a Legal Right to Be Accompanied?
Not to a settlement agreement discussion. There is a well-known statutory right to be accompanied at a formal disciplinary or grievance hearing, under section 10 of the Employment Relations Act 1999. That right does not extend to a settlement agreement discussion or protected conversation, which is a different kind of meeting. There is no equivalent statutory right for either party to insist on bringing a colleague or trade union representative to that discussion.
Even so, the ACAS Code of Practice on Settlement Agreements describes allowing an employee to be accompanied as good practice, and notes that it may help progress settlement discussions. If advance notice is given of a meeting that turns out to be a protected conversation, there is nothing to prevent an employee asking to bring someone — the employer is simply not legally obliged to agree.
Why the Absence of a Right Doesn’t Mean No Protection
Not having a right to a companion is not the same as having no protection at all. Regardless of whether anyone else is in the room, an employee is under no obligation to accept a settlement agreement on the spot, and should be given reasonable period to consider the proposal and take independent legal advice.
The refusal of a companion, or the way a meeting is arranged, can also become relevant to whether the process was conducted properly under Section 111A of the Employment Rights Act 1996. If a tribunal finds that the pre-termination negotiation process was improper, it can allow evidence of an otherwise protected conversation to be admitted in an ordinary unfair dismissal claim. A refused companion will not usually amount to improper conduct on its own, but it can form part of a wider picture.
What the Case Law Says
Gallagher v McKinnon’s Auto and Tyres Ltd [2024] EAT 174
In Gallagher v McKinnon’s Auto and Tyres Ltd [2024] EAT 174, the employee was invited to what he believed was a return-to-work meeting, which turned into a proposal to end his employment with an enhanced redundancy payment. He was not accompanied, and argued that the surprise nature of the meeting itself amounted to undue pressure. The Employment Appeal Tribunal upheld the tribunal’s finding that, on these particular facts, this was not improper — the meeting was conducted calmly, he was quickly given a breakdown of the figures offered, and he had the chance to discuss matters with his family afterwards. The EAT was careful to note that employers are not required to give advance notice of a protected conversation, but stressed that the outcome depended on the full circumstances of that case, not a general rule that ambush meetings are always acceptable.
Tarbuc v Martello Piling Ltd [2026] EAT 58
This approach was reinforced in Tarbuc v Martello Piling Ltd [2026] EAT 58, where the Employment Appeal Tribunal confirmed that an employment judge must look at the wider circumstances of a negotiation — not just what was said, but how the meeting was arranged and the time given to respond — when deciding whether conduct was improper. Read together, Gallagher and Tarbuc establish the same principle: there is no fixed checklist. Whether a companion was allowed, whether the meeting came as a surprise, and how much time was given to respond are all factors a tribunal weighs together, and none of them is automatically decisive on its own.
Conclusion
There is no statutory right to be accompanied at a settlement agreement discussion, unlike the position at a formal disciplinary or grievance hearing. Refusing a companion, or springing the discussion as a surprise, is not automatically improper behaviour under Section 111A.
Most employers will not give advance notice of a protected conversation, and therefore the employee will not, practically speaking, have a chance to bring a companion. Importantly, after the initial discussion HR will usually send the employee the offer in writing and/or a copy of the settlement agreement, and give the employee time to obtain independent legal advice from a settlement agreement solicitor.
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