Protected conversations: all gone quiet

Amid the flurry of employment law announcements made by Vince Cable on Friday, Nick Clegg’s grand plan for workplace “protected conversations” was quietly laid to rest. To recap, this idea came out of the government’s (or was it the CBI’s?) fear that employers were basically letting poor performers and the over 65s carry on in their jobs too long because managers were scared of saying anything to them, for fear of being taken to a tribunal. Nick Clegg wanted to facilitate managers having a “frank discussion” with employees about workplace matters, specifically about poor performance or retirement, without it leading to litigation.

The idea initially received what I might generously call “mixed reviews”. A few people liked it, but by and large most of the stuff I read was from people who thought it was a bully’s charterfull of holes and generally a terrible idea for both employers and employees; a view I share wholeheartedly. Somehow along the way, the idea has now morphed into something very different.

The Enterprise and Regulatory Reform Bill does have a provision in it that would enable a manager and employee to have a conversation without it being used in an unfair dismissal case in tribunal, but this would apply only to conversations about a settlement offer – i.e. the employer saying “We’ll give you £5,000 if you go quietly” (or the employee saying “I’ll take £50k and a reference if you please”). In other words, conversations that, if there were already a legal dispute underway, would probably fall within the without prejudice rule. Laurie Anstis has examined the proposal in his Work/Life/Law blog.

This is therefore not about managing performance at all, it is just about getting rid of someone. What had happened to Nick Clegg’s idea of the protected conversation as something which “would provide a safe mechanism which builds confidence in management and helps businesses make better decisions”? (I say “Nick Clegg’s idea”, but it’s unfair to blame him entirely: David Cameron put his name to it too, and in fact the idea originated with the CBI who felt that employers had been left high and dry after the repeal of retirement age laws, unable to discuss retirement plans with older workers.)

We were left wondering whether this was going to be introduced at a later date, possibly subject to further consultation, or just quietly put to sleep.

The announcement, such as it is, that this wider concept of the protected conversation has been dropped, is sort of sneaked out in the Ending the employment relationship consultation (at paragraphs 38-39 and 43-47), one of the many employment law documents published by BIS on Friday. The best explanation of the reasons for dropping the idea is tucked away on page 16 of the Regulatory Impact Assessment.

Under the heading “Rejected proposals” comes the following (NB underlining is my own):

Creating a new system of off-the-record workplace conversations 

We have considered whether it would be effective and proportionate to develop a legislative framework within which a broader range of workplace discussions were outside the scope of tribunal deliberations. Under this proposal, an employer and/or an employee would be able to instigate and engage in discussions about a range of management issues, including performance, and these conversations would be off the record and not admissible in tribunal evidence. This has been considered and rejected on the basis of legal analysis and discussions with stakeholders. A number of consequences and unintended impacts were identified.

Some stakeholders have suggested that providing protection to the content of discussions on a broader range of management and workforce planning issues, such as retirement, would be very helpful. It would not, however, be possible to give a broad safeguard without some notable limitations.

Given the requirement to comply with EU legislation on discrimination, it would not be possible, (nor desirable) to protect employers from discriminatory comments or actions. This could put businesses inadvertently at greater risk of an employment tribunal than the current position if they mistakenly believe that they are no longer bound by legislative requirements to avoid potentially discriminatory comments (although efforts would be made to be clear in guidance). To give themselves more certainty that they can demonstrate, if challenged, that they have acted appropriately and had not inadvertently discriminated, it is likely that many businesses will keep records of discussions, which, outside this legislative proposal they might not have done.

There are other issues which would also need to be addressed about how the system would work in practice which have significant possibility to add increased complexity and scope for confusion. For example, setting out the parameters within which the off-the-record protection for a conversation exists requires some kind of trigger or process which would mark the start and finish of the protection. The system would also need to be flexible enough to allow employers to have conversations when they need them, but prevent an employer making all discussions off the record, or using the simple fact of repeated off-the-record discussions as a means of pressurising an employee out of the organisation.

Clearly, the system would need some underpinning rules and procedures to ensure fairness and prevent misuse by either party, but we are mindful of past experience of overly-procedural interventions, such as the 3-stage procedure for discipline and grievance.10

Given the above, there is a high risk of satellite litigation around whether a conversation, or elements of it are admissible or not, and whether the process was followed correctly which adds to uncertainty and places costs on the Exchequer and the parties involved in that litigation.

There is also a risk that this system of would encourage managers to avoid managing effectively, choosing to discuss any potentially difficult, or even run of the mill, situations in off-the-record discussions. This could undermine employee confidence, engagement, motivation and commitment. In our policy discussions, a number of stakeholders raised this risk, and if realised, such a measure would have the opposite of its intended effect. Instead of facilitating open conversations with staff it could encourage the use of regulation around off-the-record conversations in place of ordinary workplace discussions.

Also, an entirely new concept and regime would require significantly more time and effort on the parts of employers, employees and the judiciary to understand and familiarise themselves with the requirements.

Or, as they put it rather more succinctly in the consultation paper itself:

“Some experts have warned that it could create a field day for lawyers.”

Well, quite. I really don’t have much to say in response to this, except that it’s nice to see someone in government has actually been listening for once.

I wonder how long that’ll last.


About Mrs Markleham

Employment lawyer, discrimination lawyer, mildly peevish old woman.
This entry was posted in General employment law, Red Tape Challenge and tagged , , , , . Bookmark the permalink.

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