Protected Conversations with Employees – Is It Safe?

One of the proposals arising out of the recent consultation by the government on employment law was that employers should be able to have conversations about an agreed exit with employees who were under performing or needed to be dismissed for some other reason such as redundancy without having those discussions used against them in tribunal claims.

You therefore face the problem that you want to talk to someone to see if they can be persuaded to leave or to change their role but run the risk that if they are not happy about your suggestion, they may rely on your discussion as evidence to show that you wanted to get rid of them.

Whilst there is a debate to be had about whether this is such a problem in reality, I do not intend to go into that here – I may return to it in a later article with some suggestions on how to avoid the problem in the first place (now, there’s a threat).

What I want to discuss here is whether the current proposal is likely to do any good.

In my view it is of no use whatsoever.

At present the draft bill provides in subsection (1) that an “employment tribunal may not take account of any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee”.

So far, so good. However it goes on: “This is subject to the following provisions of this section.”

That is where the problem starts. It then says: [the above] does not apply where, according to the complainant’s case, the circumstances are such that a provision (whenever made) contained in, or made under, this or any other Act requires the complainant to be regarded for the purposes of this Part as unfairly dismissed.

And:

(3) In relation to anything said or done which in the tribunal’s opinion was improper, or was connected with improper behaviour, subsection (1) applies only to the extent that the tribunal considers just.

That effectively means that if the employee says that you said something in the ‘protected conversation’ that requires the Tribunal to find that he was unfairly dismissed, the conversation can be referred to in the proceedings regardless of whether the tribunal actually holds that to be the case. The allegation is enough to bring the content of the protected conversation into play.

That would cover allegations about issues such as trade union activities, refusal to work on Sundays, asserting a right to flexible working, taking leave for family reasons, TUPE transfers, asserting rights as a part-time or flexible worker and a host more.

Clearly there is significant scope for an employee to genuinely feel that the reason for their dismissal might be connected to one or more of those, never mind those who might raise such claims simply in order to be able to refer to the ‘protected conversation’.

The second portion is even worse. The tribunal is being required to consider whether anything in the protected conversation was ‘improper’ or was ‘connected with’ improper behaviour and it is then only protected to the extent that the tribunal considers just.

The problem with that is of course that in order to consider whether there was anything improper which it might be unjust to protect, the Tribunal has had to look at the contents of the protected conversation.

The conversation is therefore only ‘protected’ if a tribunal thinks you have not done anything improper – which puts you right back where you started before the whole idea of ‘protected conversations’ came up.

So what can you do? Not surprisingly, I am going to say that if you have an issue with a member of staff and want to do something about it, contact us as early as possible.

We can advise you on how to approach the issue with a view to minimising the risks and resolving the issue as quickly and smoothly as possible.

If you would more information or support please contact Ian Pinder on idp@gardnercroft.co.uk