Protected conversations will not allow employers to discriminate, says minister

Proposed “protected conversations” will not shield employers from discrimination claims, employment relations minister Edward Davey has confirmed this morning.

A consultation into protected conversations, which would allow employers to raise issues such as poor performance or retirement plans in an open way, without the fear that it will be used against them in tribunal, was announced today as part of a raft of “radical reforms” to employment law.

The aim of the proposal is to “nudge” employers to have “sensible conversations” that they should already be having but are afraid to have. Davey stressed that these conversations will not protect employers that make discriminatory comments towards an employee.

Davey said: “The objective is to encourage people who are afraid of having conversations that they ought to be having, to have them. The objective is not to protect employers from saying discriminatory comments. That won’t be allowed.

“If someone wants to have a conversation with someone who is approaching retirement about their retirement we don’t believe that should be discriminatory. We will wish to make it clear that where people are having sensible conversations about a real issue, those can go ahead without discrimination claims.”

He added that the Government will aim to achieve a balance between making sure that there is a due process in place so that people know when a protected conversation is happening and making sure that there isn’t a “minefield of legal processes which are so over the top that conversations will never happen”.

However, Howard Hymanson, head of employment law at Harbottle & Lewis, said that protected conversations would be a “recipe for disaster”.

Hymanson explained: “In principle, there is much to be said for the introduction of a right for an employer to have a full and frank exchange of views with an underperforming or poorly behaving employee.

“However, the problem is that once the ‘genie is out of the bottle’ there is no putting it back. In practice, one can not impose by legislation an effective ‘time-out’ in a relationship that, at its heart, is built on the implied duty of ‘mutual trust and confidence’. If this ‘protected conversation’ actually finds its way on to the statute books, it will not help employers in many instances to bring about an effective, pain-free exiting of an unwanted employee.”

He added that employers must be left to gauge how and when these difficult conversations should take place and it is not an area that requires “yet more government regulation”.

Ben Willmott, head of public policy at the Chartered Institute for Personnel and Development, warned that when it comes to protected conversations, the Government needs to beware of unintended consequences.

“Proposals to introduce some form of ‘protected conversation’ to allow employers to discuss issues like retirement and poor performance without fear of a tribunal claim, while well meant, are likely to actually increase confusion among employers, add to red tape and generate additional legal disputes,” Willmott argued.

“By offering false comfort, the Government risks creating a field day for employment lawyers and a nightmare for businesses.”

Davey is scheduled to make a speech tonight to HR professionals at the Personnel Today Awards 2011 in London.

View further information about the announced employment law reforms.

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