I mentioned the concept of “protected conversations” briefly in our October 2011 newsletter and gave it a guarded welcome.
As now presented in the proposed government reforms it is confirmed as a completely new development, in which employers would be able to broach difficult topics and, perhaps, suggest an agreed parting of the ways, without anything said being admissible as evidence. Protection will not extend to anything discriminatory said in meetings – as is the case currently in “without prejudice” discussions.
At the moment, it is only possible to agree that a discussion should be “without prejudice”, so that the details cannot be brought up in tribunal, where a dispute is already in existence and the discussion is to try and resolve it. The trouble is, often employers want to have this sort of conversation before a dispute crops up, in which case without prejudice protection doesn’t apply, and there is a real risk that the conversation will be regarded as damaging trust and confidence and so give rise to a constructive dismissal claim.
An option to have a “protected conversation” may bridge that gap, and one point of view is that it would give employees a dignified way out, rather than facing disciplinary or performance procedures. Equally, it has been criticised as giving the green light to poor management practices, and suggestions that it could be used to discuss retirement seem at odds with developments in age discrimination law and the abolition of automatic age retirement. One potential flaw that occurs is that the employer, if they have raised a performance or disciplinary issue in such a meeting, may, later on, want to be able to show that they have discussed the problem with the employee, and have fallen into the trap of not starting disciplinary procedures from scratch if the “protected conversation” fails.
Other ideas floated include consulting on exemptions for very small businesses (10 or fewer employees) and revising and cutting back the ACAS code of practice on disciplinary procedures. The latter proposal is one that should be approached with particular caution, taking into account that the code of practice is designed to ensure that employers follow fair procedures and failure to do so can still lead to a finding of procedural unfair dismissal.