Protected Conversations and Other Government Proposals
The Government is keen to promote the concept of “protected conversations”. A “protected conversation” would allow employers to discuss issues with employees without fear of being referred to an Employment Tribunal. This is very similar to the “without prejudice” concept which can only be used in the context of legal proceedings (or anticipated legal proceedings) in order to try and settle a claim. A “protected conversation” would allow employers to discuss issues such as retirement plans and work performance without that conversation then being repeated to the detriment of either party in an Employment Tribunal. The Government envisages a “protected conversation” as one which can take place at the request of either the employee or the employer.
The Government believes that promoting “informality” in the workplace around these issues will liberalise the job market by addressing the fear that employers often have in employing new workers. In a speech introducing the proposal, the Prime Minister said “… when it comes to making it easier to employ people, we are going to get to grips with some of the rules and regulations designed to protect employees, but which are actually stopping people getting jobs in the first place … if employers are so concerned about the prospect of being taken to Tribunal that they don’t feel they can have frank conversations with their employees, many companies just won’t feel able to create those jobs in the first place …”.
All well and good so far but there will be a lot of detail to be addressed in any proposed legislation to ensure that this scheme will work. For instance, will both the employer and the employee have to agree together that the conversation is protected? There could also be challenges against the new proposal on the basis that employers should not be allowed to use protected conversations as a cloak for discrimination (as set out in Culkat case law on without prejudice discussions in the workplace). In addition, there is still likely to be a culture of distrust between employers and employees (and vice versa) which is likely to prohibit the effectiveness of protected conversations.
The Government has also confirmed that the qualifying period for unfair dismissal will increase from 1 to 2 years in April 2012 and that fees will be introduced for employees bringing Employment Tribunal claims. The introduction of fees is a positive development as it is currently all too easy to bring an Employment Tribunal with no financial risk. We doubt that the increase of the qualifying period to 2 years will have a significant impact on the level of claims currently bedevilling employers and Tribunals. Indeed, our main concern is that the vexatious litigant will still find a way around the 2 year bar by seeking to bring claims that do not require any period of service (protected disclosure and discrimination claims). Litigants may also try to issue contract claims in the courts to get around the bar. However, it is possible that the proposed Tribunal fees could act as a deterrent.
For more information on the above or for advice on any other employment issue please contact our employment department on 020 7354 3000 or e-mail employment@colmancoyle.com
You can also follow us on twitter: CCemplaw
Author: David Malamatenios
Date published: 30th November 2011