Nick Clegg has this week suggested that employers should be allowed to have “protected conversations” with their employees. This is in response to employers telling Mr Clegg that “they’re afraid to
Nick Clegg has this week suggested that employers should be allowed to have “protected conversations” with their employees. This is in response to employers telling Mr Clegg that “they’re afraid to have frank discussions with staff”.
During a protected conversation, Mr Clegg suggests employers should be able to speak openly with an employee about such matters as performance concerns and retirement. The employee would then not be able to refer to the discussion in the Employment Tribunal.
Unsurprisingly, the proposal has been criticised as allowing employers to use protected conversations to pressure staff out of jobs.
The scope of Mr Clegg’s proposals are as yet unknown. In particular, it remains unclear how protected conversations will differ from without prejudice privilege, which is often used to offer employees compensation packages as an alternative to protracted capability processes.
Protected conversations may also back fire against employers. An employer defending a claim of unfair capability dismissal will want to refer a Tribunal to the conversations it had with the employee, putting him on notice of his underperformance and steps he would need to take to improve. Potentially an employee could prevent an employer referring to such conversations in evidence if they took place under a “protected” cloak.
This perhaps highlights the main criticism of protected conversations. An employer who reasonably raises issues of capability and retirement should not be concerned about those conversations being used in evidence at a Tribunal. As such, protected conversations may turn out to be no more than a forum for unscrupulous employers to avoid liability for their unreasonable behaviour.
During a protected conversation, Mr Clegg suggests employers should be able to speak openly with an employee about such matters as performance concerns and retirement. The employee would then not be able to refer to the discussion in the Employment Tribunal.
Unsurprisingly, the proposal has been criticised as allowing employers to use protected conversations to pressure staff out of jobs.
The scope of Mr Clegg’s proposals are as yet unknown. In particular, it remains unclear how protected conversations will differ from without prejudice privilege, which is often used to offer employees compensation packages as an alternative to protracted capability processes.
Protected conversations may also back fire against employers. An employer defending a claim of unfair capability dismissal will want to refer a Tribunal to the conversations it had with the employee, putting him on notice of his underperformance and steps he would need to take to improve. Potentially an employee could prevent an employer referring to such conversations in evidence if they took place under a “protected” cloak.
This perhaps highlights the main criticism of protected conversations. An employer who reasonably raises issues of capability and retirement should not be concerned about those conversations being used in evidence at a Tribunal. As such, protected conversations may turn out to be no more than a forum for unscrupulous employers to avoid liability for their unreasonable behaviour.