The Deputy Prime Minister Nick Clegg has said that employers should be allowed to have “protected conversations” with underperforming workers that would be inadmissible in employment tribunal proceedings, the Daily Telegraph reports.
There have also been suggestions that the Government might go even further than this and allow for “compensated no-fault dismissals”, whereby an employer could dismiss an employee at any time without giving a reason and paying the employee only for his or her contractual notice period and other statutory payments such as redundancy pay. The dismissed employee would not be able to claim unfair dismissal, although a discrimination claim would still be open to him or her.
The idea of allowing for “protected conversations” with staff, which has been championed by the CBI (on its website), appears to be that employers could have performance-management discussions with employees that would not be admissible in employment tribunals later. While we don’t know the details of the proposals yet, there are some immediate potential problems that spring to mind.
1. Will it be employers that will nominate when a discussion is protected or will the employee have to agree too? Why would any employee ever agree to have an off-the-record conversation with his or her employer?
2. Will there be a limit on the number of protected conversations that an employer can have with a particular employee? If so, how will this number be verified?
3. There are likely to be challenges in the courts on the basis that the Government shouldn’t allow employers to “opt out” of discrimination legislation in “anything goes” conversations.
4. There may be human rights implications in making certain evidence inadmissible, on the basis that the claimant has been denied entitlement to the right to a fair hearing to which he or she is entitled under the European Convention of Human Rights.
5. Protected conversations should not be an alternative to good and open management and may have the opposite effect of the stated aim of encouraging open discussions. Employees will become suspicious whenever conversations are protected.
6. It is not uncommon for staff who feel that they are being discriminated against to secretly record conversations. If clearly discriminatory comments are recorded, will these still be inadmissible?
7. If an employee is forced to resign because he or she feels singled out with protected conversations, will the discussions still be inadmissible in a constructive dismissal claim?
8. Will there be a minority of managers and employers misusing protected conversations and will there be any remedy for employees in these cases?
9. What if the employee tries to admit the evidence in the employment tribunal anyway? This could be common, given the number of litigants-in-person that bring claims and could create a major sifting job for tribunals.
10. If the employer makes some performance-management discussions protected, but not others, how is possible to separate the evidence as to what’s admissible and what’s not?
11. Will claimants simply find other evidence, actually leading to more flimsy cases coming before the tribunals?
12. What will the status of a protected conversation be if the employee attempts to raise a grievance about how it has been conducted?
13. Will the employer be prohibited from taking action against a manager if he or she is accused of bullying and would the conversation be inadmissible if the manager is later dismissed and brings a claim?
14. Are the employee’s actions during a protected conversation beyond reproach, for example if the employee verbally abuses a manager? Or will confidentiality work only one way?
15. The inability to admit evidence from a protected conversation might actually disadvantage the employer, if there is evidence in its favour in a protected conversation that is inadmissible.