‘Protected conversations’ will be of little use to employers

Posted 31/01/2013

Back in July last year, Nick Clegg and Vince Cable floated the idea that employers should be able to be more open with members of staff in the workplace. The Government wanted employers to be able to have ‘protected conversations’ with their staff, perhaps with the aim of enabling an employer to turn to an employee and say, “Well, it’s not working out, is it? … How about we give you £5,000 to go quietly”? The plan was that these conversations would remain off the record and inadmissible in any subsequent Employment Tribunal proceedings. As things currently stand, without there being a dispute (such as a grievance) between the employer and employee, a conversation such as the above could put the employer at risk of a constructive dismissal claim. Of course, an employer would be unlikely to have a protected conversation with its gold star employee of the month: those approaching retirement age, those not performing for some reason and others in a similar position would be the likely targets. Despite the initial enthusiasm, the consultation process on Ending the Employment Relationship has (somewhat wisely) concluded that allowing protected conversations could well result in a flood of discrimination claims, or claims over whether the conversation in question should have ‘protected’ status. As we can see, this would take us far from Mr Clegg’s Utopian ideal of “building confidence in management” and “helping businesses make better decisions”, the stated aims of the concept.As a result of the Government’s climb down, whilst protected conversations are still on the menu in the Government’s Enterprise and Regulatory Reform Bill, they will now be of limited appeal to employers. Provided that the employer couches its offer in the right way, a protected conversation (in reality probably a written proposal put forward in line with a statutory Code of Practice which has yet to be drafted), will only be inadmissible as evidence in an unfair dismissal claim. However, employees will still be free to introduce the protected conversation as evidence in any other claim, such as discrimination or breach of a statutory right. In short, whilst they might be of some use in straightforward misconduct and redundancy situations, protected conversations could end up being more trouble than they are worth (déjà vu for those who recall the introduction of the statutory dismissal procedures a few years ago). In fact, the best advice is likely to be only to proceed to engage in a ‘protected conversation’ following advice from your employment lawyer. This could indeed end up being the most cost effective solution for any employers who need to address difficult staff issues. Yet again, there can be no substitute for robust management: ‘protected conversations’ are unlikely to act as a ‘quick fix’.     If you would like to discuss this or any other Employment Law issue, please contact a member of our Employment Team