Protected Conversations - Carl Fender - Barrister at Regency Chambers

Is the Government's alternative to compensated no-fault dismissals really worth the candle? Having decided to drop this idea, the alternative of 'protected conversations' is to be put out for consultation. The CBI supports the proposal. The idea amounts to 'without prejudice' discussions about an employee's performance in the workplace, and preventing what has been said being used against the employer in, for instance, a constructive dismissal claim. This proposal is just one of several ideas being considered to free our employment laws of so-called red tape.

One does wonder if what is driving reform of our employment laws is more perception than reality. Employers are quoted as being fearful of expensive and time-consuming litigation as a result of dismissing poorly-performing staff. The existing legislation around dismissals for capability is couched in terms of reasonableness. Employers running their businesses efficiently should be able to demonstrate whether or not employees are meeting required standards in performance. The raising of the qualifying period for bringing an unfair dismissal claim to 2 years should be enough reassurance for employers if they feel our present laws disincentivise recruitment.

Although the detail of any proposed legislation has yet to be finalised, one can see much satellite litigation resulting from what is/is not a 'protected conversation'. Reducing claims to the tribunal is another aim of the raft of reforms that are going through or are under consultation. Will the number of claims being presented reduce because of this particular proposal? An impact assessment already sees a reduction because of the raising of the qualifying period. Others see litigants using discrimination or automatic unfair dismissal grounds where they are time barred. It is certainly arguable that whilst 'protected conversations' might provide some immunity to employers in respect of particular occasions when discussions occurred, they are unlikely to encourage conciliation or loyalty. An employee who has had the Riot Act read to them, and who knows they cannot immediately resign, is hardly likely to feel valued or incentivised to work.