Time to draw a line under ‘Protected Conversations’

Employment legislation must tread a fine line between ensuring employees are protected without placing an unjustifiable burden on employers. The tricky part is deciding exactly where that line should fall.

The line is always moving and at the moment we are seeing a very clear move toward a reduced burden on employers. This is hardly surprising; it was one of the stated aims of the Coalition Agreement and the Government is keen to show that it is taking decisive action to help employers in this time of economic hardship (without actually spending any money of course).

Andrew Crudge,
Solicitor at Thomas Eggar

There are no prizes for guessing which way Ed Miliband and his Union backed Labour party want this line to move. So while they are knocking on the door of Number 10 – or, more accurately, shouting across the House of Commons – there is even greater incentive for the Tories to push through their vision of smaller government and reduced red tape.

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But we don’t have a solely Conservative Government. It is all too easy to assume that the still-happy-to-be-at-the-table Liberal Democrats have been silent partners to this quintessentially right-wing objective. But those who hold such an assumption should take note of Nick Clegg’s recent comments on “protected conversations”.

Nick Clegg said that he believed employers should be able to have “frank discussions” with their employees, without fear of these conversations being used against them. These discussions would take the form of “protected conversations” whereby employers could raise issues with employees that could not be later relied upon as evidence in any Employment Tribunal proceedings.

Details of the proposals have not yet been released but the protection is likely to apply where employers seek to discuss issues such as retirement or career plans with their employees.   

Following the removal of the Default Retirement Age earlier this year, some argued that without the ability to dismiss employees at the age of 65, employers would have no idea how long an individual was likely to continue working, and so would be unable to make long-term employment plans. “Protected conversations”, it is suggested, would give employers the ability to discuss these issues with their employees in a less restrictive manner. They argue that many employers are currently just too scared of litigation to deal with these issues effectively.

Any measure that would reduce the likelihood (and therefore costs) of employee legal action is likely to be welcomed by employers.  But two key questions arise in light of this proposal: firstly, would employers’ costs in defending claims actually fall? And secondly, is the move away from employee protection justified?

Those in favour of “protected conversations” argue that employers would be better able to defend any subsequent claim as employees wouldn’t be able to use these discussions in evidence against them. But it is questionable as to whether employers’ costs of dealing with Tribunal claims would fall, and it is possible that costs could even increase.  

This is because there are likely to be disputes as to whether conversations fall within scope of those that are “protected”. Although we don’t know the details as to how these conversations would operate, there is likely to be an obligation on employers to at least inform employees that the discussion is to be “protected”.  There may also be a limited number of protected conversations that can take place with each employee and the employee may have the right to be accompanied to such meetings. This is all speculation, but the important point is that employers would certainly not be able to retrospectively argue that any conversation that hadn’t gone as they had hoped should be “protected”.  

This means that we are likely to see numerous disputes as to whether the conversation was protected. This would need to be dealt with as a preliminary issue in any Tribunal proceedings, most likely at a Pre-Hearing Review. Any additional stage to Tribunal proceedings means additional cost and burden for employers.

Even if there’s no dispute as to the validity of the “protected conversation”, the very fact that it has taken place could act as a catalyst for employee discontent (and where there is discontent, litigation often follows). Employers are likely to use this opportunity to have forthright discussions with their employees as to career or retirement plans. Rightly or wrongly, some employees could see such comments as discriminatory and so could be actively encouraged to bring a claim against their employer which they would otherwise not have brought.

Nick Clegg has said the discussions would allow people “to treat each other like human beings and not like potential litigants”.  But in fact the proposal would achieve precisely the opposite aim. What better way to treat an employee like a potential litigant than to require an important discussion to be held such a way that it can’t be disclosed in an Employment Tribunal?  

When the Default Retirement Age was introduced, the idea of “protected conversations” was rejected because it was deemed unnecessary.  Employers are already able to have discussions with their workforce about their future plans, provided that such discussions aren’t discriminatory. Such conversations would not be discriminatory if they are held with all staff on a regular basis (not just older employees) and are used to gather information (and not to put pressure on employees to leave).  

It seems that the only benefit of “protected conversations” would be to enable less scrupulous employers to have potentially discriminatory conversations with their employees. This would inevitably move the dividing line away from employee protection and without the associated benefit of a reduction in the legislative burden for employers, there appears to be little justification for such a move.  

for more information , please visit http://www.thomaseggar.com/
 

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