10 December 2018 - Article
The Government originally proposed the idea of ‘protected conversations’ as a means by which, as the Prime Minister David Cameron put it, ‘a boss and an employee could feel able to sit down together and have a frank conversation at either’s request’. The idea was that ‘frank conversations’ about workplace matters could take place without the employer being at risk of being taken to a tribunal. The Deputy Prime Minister, Nick Clegg, suggested that these ‘protected conversations’ might include performance concerns or retirement plans.
The proposal that the Government has included in the Enterprise and Regulatory Reform Bill, which is currently making its way through the House of Lords, is somewhat narrower in scope that the original proposal. The Bill simply provides that, with some exceptions, an offer made or discussion held with an employee with a view to terminating employment on terms to be agreed cannot be taken into account as evidence in a subsequent unfair dismissal case.
1. ‘Protected conversations’ will only be eligible to be withheld as evidence in a tribunal in ‘ordinary’ unfair dismissal cases. In claims where the dismissal is automatically unfair (such as a dismissal for asserting a statutory right) or in claims for unlawful discrimination or public interest disclosure detriment, the conversation would be fully disclosable.
This means that protected conversations cannot be relied upon to have ‘frank discussions’ about retirement for example, as (depending on the degree of frankness on the employer’s part) these might involve direct age discrimination or age-related harassment, thus losing protection.
Any conversation which has the potential to include discriminatory material, such as a conversation with a woman on maternity leave suggesting that she should not return to work, or a discussion about ending the employment of a disabled employee, would similarly not be guaranteed to be ‘protected’ under these new proposals.
2. The current proposals do not prevent a tribunal taking account of a conversation in which, in the tribunal’s view, something was said or done that was improper or was ‘connected with improper behaviour’. In such a case the tribunal can take account of the conversation if it considers it just to do so. The scope of what a tribunal might consider ‘improper’ is plainly very wide, but this limitation might apply if the employer threatened or bullied the employee during the conversation.
How should an employer start a protected conversation?
How protected conversations will work in practice is yet to be fully clarified. In its Consultation Paper entitled ‘Ending the Employment Relationship’, published in September, the Government proposes a set of model letters to sit alongside its proposed model ‘Settlement Agreement’. The Consultation Paper seems to envisage that the so called ‘protected conversation’ will actually be a written proposal made to the employee in accordance with a statutory Code of Practice. The Code has yet to be written, but in the Consultation Paper the following principles are suggested:
- the protection in legislation (inadmissibility of the offer in evidence to employment tribunals) only applies in unfair dismissal cases;
- either party may propose settlement;
- the reason for being offered the settlement should be made clear;
- settlement offers should be made in writing and set out clearly what is being offered (eg settlement sum and if appropriate agreed reference) as well as what the next steps are if the individual chooses not to accept the offer;
- it would not be necessary for an employer to have followed any particular procedure prior to offering settlement;
- the Code will make clear that if an employer handles settlement in the wrong way (ie not as explained in the Code) there is a risk that this will give rise to a breach of the implied term of trust and confidence and allow the employee to resign and claim constructive dismissal;
- where an individual refuses settlement, the employer must go through a fair process before deciding whether to terminate the relationship;
- individuals should be given a clear, reasonable period of time to respond;
- the Code should give specific examples of what may constitute “improper” behaviour;
- no undue pressure should be put on a party to accept the offer of settlement;
- as closely as possible, the approach should reflect current practice in without prejudice negotiations which many employers and legal professionals are already familiar with; and
- the employer should not make discriminatory comments or act in a discriminatory way when making an offer of settlement.
These proposals raise questions about whether the Government will achieve its stated aim of making settlements easier, or whether the new arrangement will add a further layer of bureaucracy to established methods of managing workplace disputes. The Consultation is open until 23 November and it is therefore possible that the proposals will change shape again.
So how will protected conversations be different from those conducted ‘without prejudice’?
In one respect protected conversations will have wider application that those conducted without prejudice as a protected conversation can take place even where there is no actual dispute with the employee. The need for an existing dispute causes uncertainty about whether a conversation can properly take place without prejudice and protected conversations, in a limited number of cases, may be able to fill the gap.
The new-style protected conversations will be of most use to employers in straightforward dismissal scenarios. In theory, these might include cases of persistent misconduct or redundancy but the difficulty of conducting ‘frank discussions’ in such cases is generally less pronounced. The proposal lends itself primarily to cases of poor performance, where there is no obvious dispute with the employee, managing the issue is likely to be time consuming and difficult and there is no certainty of outcome.