Legal opinion: Are protected conversations an exciting new initiative or counterproductive for employers?

The coalition Government, in an effort to encourage the greater use of compromise agreements (or settlement agreements as they are now to be called), is planning to introduce into UK workplaces the concept of the “protected conversation”. This is one of a number of initiatives to be found in the Enterprise and Regulatory Reform Bill, a package of measures designed to “scrap unnecessary red tape” for businesses. Robert Dixon of Turbervilles Solicitors looks at the pros and cons of the proposal.

Protected conversations

The idea of the protected conversation is that employers can talk to their employees about possible termination deals or severance packages without having to worry about those conversations being referred to in subsequent employment tribunal cases if the discussions come to nothing and the employees then say they have been unfairly dismissed.

Small businesses, in particular, often do not have the time or resources to follow so-called best practice when it comes to dismissing staff. Removing underperforming employees can be particularly problematic because taking them through a series of warnings or a performance improvement plan inevitably uses up precious management time and is frequently disruptive.

Compromise agreements

In this type of scenario, the compromise agreement provides employers with the perfect solution. The company typically gives their employee some money and a decent reference and, in exchange, the employee agrees to leave quietly and to make no claims. Most of the time these compromise agreement dismissals work well for employers. However, the difficulty is knowing when it is safe to embark down the compromise agreement route and how to handle the process.

The intrinsic problem is that, practically speaking, once a compromise agreement has been broached, there is no way back. Once you start discussing a person’s possible departure and the terms on which they might go, how can you realistically expect them to carry on working for you as a committed employee if no deal can be reached? The relationship of trust will have been permanently damaged.

Risk of expensive consequences

This means a badly judged or mishandled attempt to remove an employee through a compromise agreement can seriously backfire – with expensive consequences. You may end up paying well over the odds to secure the employee’s signature on the compromise agreement. Worse, the employee may resign, say he was constructively dismissed, and claim substantial compensation for unfair dismissal, leaving you to fight the very tribunal case you had been trying to avoid.

Moreover, in that tribunal case, the earlier discussions you had with your employee, which you had intended to be held “off the record” or “without prejudice”, may well turn out not to have been. If so, the tribunal would hear all about the discussions and might decide you thereby made your employee’s position at the organisation completely untenable.

Need for robust, straightforward legislation

The protected conversation is the Government’s answer to this problem. It may seem like a good idea but unless the legislation is robust and straightforward, the danger is that it will suffer the same fate as befell the infamous statutory disciplinary and grievance procedures, which had to be scrapped because the legislation was overcomplicated and poorly drafted, resulting in a mass of wasteful “satellite” litigation.

The reaction of many employment lawyers to the draft legislation on protected conversations recently placed before Parliament suggests that there is much room for improvement. Whether or not Parliament will grasp the nettle remains to be seen.

Counterproductive

In any event, though, it seems that the Government may be unwittingly sowing the seeds of discord in workplaces up and down the country. Protected conversations may make it easier for businesses to persuade their employees to accept severance terms and sign settlement agreements, but they may also encourage employers to overstep the mark and end up with embittered employees who refuse to sign up and, knowing they are no longer wanted, become more of a headache (in terms of prolonged sickness absence, etc) than they were before the abortive conversations took place.

Employers would also have to bear in mind that although a protected conversation might not spark off a constructive/unfair dismissal claim, it could still prompt a discrimination claim. This is because if the employee were to complain to the tribunal that he was discriminated against because of, for example, his age or race, at the hearing of his complaint he would be allowed to give evidence about the conversation. This would be the case even if the employer had made it perfectly clear at the time that it was to be a protected conversation.

A damp squib?

Because of these and other difficulties, the probability is that the protected conversation idea will turn out to be a damp squib. Employers will sooner or later realise that it is not the panacea it might appear to be and will give it a wide berth.

Robert Dixon is employment partner and joint head of the HR and employment law department at Turbervilles Solicitors

FAQs on compromise agreements from XpertHR:

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