Busines Surgery: ‘Protected conversations’ could cause problems

Caroline Banwell, solicitor, Ashton KCJ
Caroline Banwell, solicitor, Ashton KCJ

Caroline Banwell, a solicitor at Ashton KCJ, explains how the Government’s plans for ‘protected conversations’ could cause problems for employers.

Back in July last year, Nick Clegg and Vince Cable floated the idea that employers should be able to be more open with members of staff in the workplace.

The Government wanted employers to be able to have ‘protected conversations’ with their staff, perhaps with the aim of enabling an employer to turn to an employee and say, “Well, it’s not working out, is it? … How about we give you £5,000 to go quietly”?

The plan was that these conversations would remain off the record and inadmissible in any subsequent Employment Tribunal proceedings. As things currently stand, without there being a dispute (such as a grievance) between the employer and employee, a conversation such as the above could put the employer at risk of a constructive dismissal claim. Of course, an employer would be unlikely to have a protected conversation with its gold star employee of the month: those approaching retirement age, those not performing for some reason and others in a similar position would be the likely targets.

Despite the initial enthusiasm, however, the consultation process on Ending the Employment Relationship has (somewhat wisely) concluded that allowing protected conversations could result in a flood of discrimination claims, or claims over whether the conversation in question should have ‘protected’ status.

Whilst protected conversations might be of some use in straightforward misconduct and redundancy situations, they could end up being more trouble than they are worth and will be of limited appeal to employers.

Provided that the employer couches its offer in the right way, a protected conversation will only be inadmissible as evidence in an unfair dismissal claim. Employees would still be free to introduce the protected conversation as evidence in any other claim, such as discrimination or breach of a statutory right.

The best advice for employers is to only proceed to engage in a protected conversation following advice from your employment lawyer. This could end up being the most cost effective solution for any employers who need to address difficult staff issues.

For further information or advice, please contact Ashton KCJ’s Employment Team on 01284 761233.