Government proposal for ‘protected conversations’ in employment

28 November 2011

The Government has put forward a proposal for employers to be able to hold ‘protected conversations’ with employees and vice versa. In the words of David Cameron the impetus for this is so that “ a boss and an employee feel able to sit down together and have a frank conversation ”. However, we should query what this would mean for current employment protections especially given that the proposal is for the ‘protected conversations’ to be kept private and off-the-record, so that they cannot be brought before a Tribunal or Court.

This suggestion also comes after a plan to increase the qualifying period for ordinary unfair dismissal from one year to two years’ service and a separate proposal to introduce fees for Employment Tribunal claims.

As a firm advising both employers and employees we take a cautious view about what ‘protected conversations’ would encompass if they were introduced. For example, what is an employer’s position if the employee admits their performance failings in a ‘protected conversation’ but is entrenched in their employment? And what recourse would an employee have if a ‘protected conversation’ included elements of clear discrimination? Would it be impossible for an employer to dismiss an employee unfairly if they consulted via ‘protected conversations’? Or would a token procedure be necessary after the ‘protected conversation’? If an employee was a whistle-blower would their disclosure be treated in the same way if it was made in a ‘protected conversation’?

Furthermore, an employee and employer have a mutual obligation of trust and confidence ­ it is not apparent how that would be maintained in ‘off-the-record’ scenarios.

The main question is: which party is protected and from what?

At the current time, the Government have mooted this as a Consultation. We eagerly wait to see what the Consultation will report and whether the idea is dropped as quickly as it was thought up.

To read the text of David Cameron’s speech, please click here.