Question: How helpful would it be for an employer to be able to sit down with an employee and have a frank and open discussion about the business, the employee's performance, their future, or any other issues that have been rumbling along, and for these conversations to be protected?
Answer: Very?
Will Protected Conversations become a reality?
According to David Cameron, in the not too distant future, these open discussions between employer and employee will hopefully become more commonplace as they will be legally "protected". What this will mean is that both employers and employees will be able to have a detailed discussion about changes to the business, including redundancies and ongoing employment, or issues with performance, without the fear of the threat of legal proceedings.
David Cameron sympathised with employers, currently under increasing economic pressure to thrive in this climate, that are being crippled by fear of employee claims. Employers feel unable to address issues or raise questions with employees and in turn are afraid to take on new staff because of the employment liabilities attached.
The Government will be consulting on this proposal and we have yet to see the details of how these types of conversations will work in practice, will they only apply to certain conversations about certain issues, will it be a mutual protection i.e. will both parties need to consent to the protective nature of the discussion and at what point will these conversations be protected? Presumably, similarly to the "without prejudice" rule, these conversations will lose their protective nature where they are used as a cloak for discrimination or other wrongdoing.
How useful these conversations will be remains to be seen, with some legal experts already casting doubt on their usefulness to employers. For example, in a poor performance dismissal, an Employment Tribunal will usually seek evidence of prior warnings to the employee and ample opportunity to improve. If those discussions are "protected", they would not be admissible in evidence before a tribunal and the employer will lose the benefit of efforts and attempts made to bring the employee's performance to their attention. Also, as these discussions will not be used to protect discriminatory discussions, how useful will they really be in a retirement context?
Alongside this, the Government is to also introduce other measures to give employers more protection from claims, including an increase in the unfair dismissal qualifying period from 1 year to 2 years which will take effect as of April 2012. It is hoped that this will encourage more employers to take on staff, allowing them a longer period to "get the relationship right" and if things are not working out then they can end the relationship without the fear of a Tribunal claim. In the same vein, the government is also considering the introduction of Tribunal fees to deter frivolous claims and reduce the cost to employers of defending these types of claims.
Click here to read more about the Government's other
proposed reforms to Employment Law (November 2011).
Click here to read our recent update on Tribunal fees.
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