Proposals for ‘protected conversations’ in employment law draw a mixed response from lawyers

The government has confirmed it will consult in the new year on putting “protected conversations” into employment law.

The concept of frank discussions between employer and employee is not new. “Without prejudice” talks, where both parties agree the content won’t subsequently turn up as tribunal evidence, already exist under common law and are often used with compromise agreements to terminate employee contracts while reducing the risk of tribunal claims. Acas guidance on Working without the default retirement age, published in March, suggests employers should have similar “workplace discussions” to manage employee performance and future work plans.

Now business secretary Vince Cable says he wants to create “protected conversations” that would “allow employers to raise issues such as poor performance or retirement plans in an open way, free from the worry it will be used as evidence in a subsequent tribunal claim”.

Sarah Rushton, a partner at law firm Payne Hicks Beach, thinks the new approach won’t add anything. “That you’ve had a protected conversation doesn’t mean you’ll remove the threat of unfair dismissal – unless you have some sort of no-fault dismissal mechanism.”

Naeema Choudry, a partner at Eversheds, says “protected conversations” will be helpful in dealing with performance issues. “The whole point of this is that both parties can have an honest conversation without fear of recrimination.” She says Acas “workplace discussions” are not being used because of “how they may be interpreted in potential future litigation”.

Stephen Levinson, a partner at Radcliffes LeBrasseur, who will lead the Employment Lawyers Association’s response to the consultation, envisages a number of technical issues. “Without prejudice” conversations lose their immunity if, for example, an employer makes discriminatory remarks during them and Levinson believes there must be similar safeguards for “protected conversations”. Not having this, he says, “might cause a number to say this is a licence to bully. The fear among those who act for employees is that employers will abuse it. It needs a lot of thinking through.” 
 
Source: People Management