Protected conversations: reasons for and against

Plans to introduce a way for employers to discuss matters of performance with staff in a more open manner have raised several talking points. John Charlton reports.

Is it really the case that employers cannot have full and frank discussions with employees about performance and intentions for fear of litigation? If the rationale behind the Government’s protected conversations proposals  is to be believed, then it must be so. Well, maybe.

Deputy Prime Minister Nick Clegg said in October: “Employers tell us they’re afraid to have frank discussions with their staff for fear of those exchanges being used against them unfairly, should a dispute end up at a tribunal. We want to give them the confidence to be open about performance, about retirement with their employees, which is better for everyone.”

Last month business secretary Vince Cable announced  that there would be a protected conversations consultation followed by legislation. The Department for Business, Innovation and Skills says that the consultation will start early next year and run for 12 weeks.

Ten things NOT to say in a protected conversation

  • Good grief, you’ve piled on the tonnage.
  • Your personal hygiene is causing the team concern.
  • Did you know in HR you’re called the uber-malingerer?
  • I’m surprised you remembered the appointment at your age.
  • You say you’re disabled? Prove it.
  • Let’s see – the only target you’ve met is your annual paid sick leave.
  • The way you dress I’m not surprised you don’t turn up every day.
  • When we said achievable it wasn’t spelled a-v-o-i-d-a-b-l-e.
  • Do you know what the team calls you behind your back?
  • Just sign the resignation letter here.

The Federation of Small Businesses (FSB) says that it did not lobby for protected conversations, but its national chairman, John Walker, says: “Small-business owners will welcome these moves as it will allow them to talk freely with their workforce without fear of reprisal, but only time will tell if conversations will really be protected. However, there would be no need for initiatives such as this had the default retirement age [DRA] not been scrapped in the first place.”

This is echoed by Neil Carberry, CBI director for employment, who says the organisation called for protected conversations “in the wake of the DRA being removed in April. These would provide a safe mechanism which builds confidence in management and helps businesses make better decisions. I’m delighted the Government is looking at protected conversations.”

Commenting on Cable’s proposals to cut employment law red tape generally, including protected conversations, Unite general secretary Len McCluskey says: “Ministers are hell-bent on removing long-established rights at work, making dismissal easier and promoting a culture of fear in the workplace. These proposals are a charter for rogue employers and bullies.”

Making the rules

Appropriate legislation could be very knotty to frame. It would have to address which issues would fall within the purlieu of protected conversations, how they sit with discrimination Regulations, how they can be initiated, whether or not what is said in them can be used in subsequent litigation and where protected conversations end and without prejudice ones begin.

Sarah Veale, TUC head of equalities and employment rights, comments: “We’re surprised this proposal is being made as it is already possible, and indeed not unusual, for employers and employees to have without prejudice discussions when they have disputes or problems they want to discuss.”

She adds that the TUC thinks that protected conversations could lead to employers bullying, threatening and discriminating against staff “without fear of such action being addressed in the tribunal as part of a claim”.

Charles Wynn-Evans, partner and head of employment at Dechert, says: “There will need to be a clear set of rules on protected conversations. For example, can they be recorded, can they be presented at tribunal, how should they be initiated … should the right to be accompanied to a grievance procedure apply to protected conversations?”

Incidentally, at the 2004 hearing of BNP Paribas v Mezzotero, the Employment Appeal Tribunal ruled that, in that case, discussions that were held without prejudice could be used as evidence given the unequal relationship of the parties concerned and the way in which the conversations were held.

Vinita Arora, partner at DLA Piper, believes that “legislation to introduce the concept of protected conversations is unlikely to be straightforward”. She says there are many questions that legislation will have to answer. These include:

  • In what circumstances will conversations be deemed to be protected?
  • When in the conversation process does it ultimately become protected?
  • Will there be a limit on the number of protected conversations on the same subject?
  • Will employee agreement be necessary beforehand?
  • When will a conversation lose its protected status, for example if discriminatory comments are made during the process?
  • Will staff be protected from dismissal or other detriment if they refuse to engage in a protected conversation?

    The list of issues likely to be raised may make for complex legislation.

    Why bother with protected conversations?

    Cynics might say: what is to stop employers having difficult conversations with employees anyway?

    quotemarksAs protected conversations become more widely used and known about, they will surely come to be seen as the first step in many an employee’s exit from an organisation.”

    Roger Tynan
    Maclay Murray & Spens

    Mike Emmott, employee relations adviser at the Chart­ered Institute of Personnel and Development, says that employers and employees “can hold meaningful grown-up conversations now. [Protected conversations] may seduce some employers into thinking there’s a safe way of dealing with performance. That’s a chimera.”

    Rebecca Strevens, solicitor at Charles Russell, says employers can address performance issues initially on an informal basis and then, if progress is not satisfactory, can instigate a formal performance-management process.

    “Provided that employers follow a fair procedure and allow employees a period of time over which to improve their performance – warning that dismissal could result if they fail to improve – it is possible to fairly dismiss an employee who is underperforming on the grounds of capability. However, in being too frank or open with employees who are underperforming, there is a risk that an individual may resign and bring a constructive dismissal claim against their employer,” she adds.

    Strevens believes that protected conversations may be useful when employers are dealing with a situation where an employee is unsuitable for the job and a formal procedure may take a while: “Protected conversations may enable employers to address issues more directly and skip or fast forward the process with the employee’s agreement.”

    A protected conversations code of conduct may help employers and employees to decide on appropriateness and procedure. “It could give employers and employees a useful steer,” says Arora. “On the downside, it is unlikely to be sufficiently detailed to cover all scenarios, leaving many employers in the dark about the status of their conversations.”

    She adds that a code may give both parties a “false sense of security” about their conversations as it is “unlikely that a code would be legally binding and would, therefore, only be serving as guidance at best”.

    It is unlikely that employees would feel any sense of security at all if asked by management to take part in a protected conversation. What if they refuse to participate?

    “We don’t yet know whether employees will be entitled to refuse to participate in protected discussions,” says Roger Tynan, partner, Maclay Murray & Spens. “However, as protected conversations become more widely used and known about, they will surely come to be seen as the first step in many an employee’s exit from an organisation. The very term ‘protected conversation’ suggests something unwelcome, which an employee should be wary of.”

    Suitable subjects for a conversation

    “Whatever the rules say, no employer should put themselves in the position of using protected conversations for behaving in a discriminatory manner,” advises Charles Wynn-Evans. This means walking on eggshells in certain circumstances, such as dealing with whistleblowing and absence.

    But protected conversations could be appropriate for discussions about retirement and performance. Vinita Arora says: “Following the removal of the default retirement age, Acas suggested employers and employees have ‘workplace discussions’ to discuss future work requirements and it could be that such discussions could become a protected conversation in order to allow the parties to speak more freely.

    “The downside of having a protected conversation about performance is that an employer would not then be able to rely on any discussions or warnings about improvement if it later wished to terminate the employee’s employment and argue fair procedures had been followed.”

    Protected conversations: just the job?

    Government and business organisations propagate the view that trimming back employment law red tape will help generate more jobs, as it will make employers less afraid of facing litigation and hassle, and thus more amenable to hiring staff. The truth is hard to establish.

    Danielle Venn, who is an economist at the Organisation of Economic Cooperation and Development (OECD), says: “There is no consensus on whether reducing regulation increases overall employment because it seems to increase both the hiring and firing of workers, with the overall impact on employment levels uncertain.

    “However, most researchers agree that reducing these Regulations can increase employment of certain groups, especially young and less-skilled workers. It can also increase productivity by allowing the economy to respond more flexibly to structural changes, for example making it easier for resources to be shifted out of declining industries and into expanding ones.”

    She adds that OECD data indicates that UK rules on hiring and firing are “amongst the least strict among all developed countries. So, we would probably expect that further easing of restrictions in the UK may have only a marginal effect in terms of incentives for hiring”.

    Stephen Dunn, industrial relations lecturer at the London School of Economics, points out that overall employment Regulations in the US are far less strict than in UK and EU countries, stating: “There’s no law on unfair dismissal. It makes things easier for employers. Historically, the US is very good at creating jobs in a very fast response to an economic upturn, whereas in Europe that’s much slower. Although the US economy is in a bad way, prior to 2007 US unemployment has been consistently and significantly lower than in EU countries.”

    Nevertheless long-term unemployment in the US has, according to the OECD, tripled. It adds that only Germany, of the major OECD economies, has seen a fall. It has more employment law than you can shake an ET1 at.

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