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Protected Conversations

‘Protected Conversations’

- Whatever happened to trust?

Autumn 2011 seems to be a busy time for employment law, what with proposed new legislation, impending consultations and the now-infamous leaked Beecroft Report (from which, incidentally, the Cabinet seems to be distancing itself – conspiracy theorists take note).

One proposal which allegedly has worked well in France for years but which is rather radical for the UK is the suggestion of protected conversations. A measure whereby an employer and employee could have a frank discussion about performance which could not later be used as evidence (by either side) at an employment tribunal.

The response is, at best, lukewarm:

“The idea of protected conversations is novel and refreshing, but whether it will work or not depends on how it will be implemented.”’

- James Wilders, employment lawyer at Dickinson Dees

“Proposals to introduce some form of ‘protected conversation’ to allow employers to discuss issues like retirement and poor performance without fear of a tribunal claim, while well meant, are likely to actually increase confusion among employers, add to red tape and generate additional legal disputes.”

- Ben Willmott, head of public policy at CIPD

“These proposals are a charter for rogue employers and bullies.”

- Len McCluskey, general secretary at Unite

So what is a protected conversation?

The much-quoted example is where an employer would be able to talk informally and honestly to a poorly-performing employee about their performance issues. On the surface, that sounds fine. But it does rather play on the myth that the state of employment legislation in the UK makes it impossible to have an honest conversation in the workplace. It doesn’t. A competent manager can sack someone for poor performance without fear of tribunal, if sacking is the appropriate course of action.

The current situation is one of ‘honesty where relevant’ and that is no bad thing. so long as the manager follows the accepted ACAS guidelines (which are more straightforward than many employers think – find the latest code of practice here) and sticks to the facts of the employee’s poor performance (i.e. how specifically they are failing to meet the stated requirements of the job) then there is no great risk of tribunal. Even if, after reasonable support, the individual remains unable or unwilling to do the job and is let go. The implication that a manager can’t be trusted to talk honestly to an employee without legislative protection is quite worrying… and groundless.

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