In the ever changing world that is contemporary employment law, many a rumour has been spread.
Now it seems the government are ready to confirm that they are going to start talking about the introduction of “protected conversations”.
Protected conversations have been heralded as a method of empowering employers to be be able to discuss important issues with employees such as under-performance. Since these conversations are to be “protected” they will not be admissible as evidence in an employment tribunal. The idea is that difficult conversations can be broached safe in the knowledge no claim for unfair dismissal is to be launched off the back of it for example.
Many of the proposed changes that have been circulating of late have been favoured as being of more use to smaller employers. In effect it would appear that should they be introduced they would only be available to such employers. Of course there could be many unsatisfactory side affects to such an introduction, for example, it might mean that people with talent are reluctant to join a smaller employer for fear of their reduced rights. If this were the case, one of the objectives of the reforms, that is to help smaller companies to compete with larger, would be unfulfilled.
This proposal, however is seen as quite a compromise from Beecroft's leaked removal of unfair dismissal. This would not prevent such claims, however, arguably, it would perhaps have an affect on the ease at which an employee might bring their case. If such is true, then the bargaining power is shifted towards the employer, who can feel safe that any potentially ruinous conversations would not be included for the purposes of litigation. Perhaps this is why many commentators have questioned the feasibility of introducing protected conversations. There is a lot to consider, not least who deserves the protection the most, the small employer and lifeblood of the British economy or the employee upon who's spending power the economy so relies?
Another potentially difficult aspect would arise in deciding what kind of claims can use such conversations as evidence in court. Discrimination claims for example, have always been different to other employment claims. An employee need not have been employed for the one year (soon to be two) before the issue of proceedings for discrimination. In fact no employment is necessary, since discrimination can arise during the recruitment process itself. Discrimination, therefore, could not feasibly be included in the provision for protected conversations since it would have such a detrimental affect on the rights of individuals who are discriminated against. The recent Nando's discrimination case has only served to highlight the need for evidence of this type to be included in proceedings.
The Nando's case referred to above, turned on the fact that the tribunal drew inferences from the evidence available in terms of the retelling of the conversations had between the prospective employee and employer. Could this be an issue for claims where protected conversations are allowed? It is considerations such as these that will make the drafter of any such laws have an extremely difficult job indeed.
In theory there are advantages to employers and employees being able to talk frankly about their work. In practice, it is difficult to see how it would actually work to the benefit of both parties and ultimately the economy and job market. If, for example there is no obligation on an employee to enter into such protected conversations, why would they? Whilst it is easy to question why an employee or worker would ever give up their rights, but then one needn't look far in the current job market to see examples of just that. Tesco was recently reported to have employed many temporary workers who had opted out of the extra rights afforded to them by the October 1st legislation.