What does the newly announced notion of "protected conversations" really mean for employers?
Friday 30 December, 2011
Employers will be following with interest the newly announced notion of "protected conversations" between employer and employee. Many will be wondering whether this could be a breakthrough for employee relations – statutorily protected situations in which frank and honest conversations could take place between employers and employees without fear of repercussions. At last, employers would be able to tell employees clearly that they were failing in their jobs. They could broach the difficult question of when that person was planning to retire. Could they even start to ask forbidden questions, such as an employee’s plans to have a family? Could this really become a reality?
Let’s go back to the facts. Earlier this month, the Daily Telegraph leaked part of an apparently unfinished report by Adrian Beecroft, the venture capitalist, who strongly argued for the abolition of the unfair dismissal legislation as we know it. The aim behind this proposal would be to make it easier for employers to dismiss "lazy workers"". Almost immediately after this document was leaked, the Government moved to dispel suggestions that it would follow the recommendation in the report. At the same time, however, Nick Clegg let it be known that he would be in favour of employers being able to have "protected conversations" in which issues with an employee’s performance could be addressed directly and candidly without the employer fearing the consequences in the form of an ET.
On 23 November 2011 Vince Cable, in a speech to the EEF, confirmed plans to consult on the introduction of such "protected conversations", which would take place at the request either of employer or employee. This follows the Prime Minister’s earlier statement to this effect. No 10’s stated intention is to relieve the burden on small businesses, which, it has been said, often are forced to keep unproductive employees rather than risk paying thousands in legal fees to fight cases at employment tribunals if they criticise their performance. It has also been stated that the plans would also help employees who wished to complain against a superior but who feared that action would be taken against them if they did so.
So the commentators who see this announcement as a compromise between the more and less radical points of the Coalition government may be right, but what could this actually mean in practice?
First, of course, there already is a form of "protected conversation". This is the "without prejudice" discussion, which in most circumstances is not admissible in Employment Tribunal proceedings. The "without prejudice" rule, however, applies to ensure that statements made in a genuine attempt to settle an existing dispute, whether made in writing or orally, cannot be put before the court or tribunal as evidence of admissions against the interest of the party who made them (Unilever plc v The Proctor & Gamble Co. [2000] 1 WLR 2436).
Employers will recognise the vexed question of whether or not there is an existing dispute between employer and employee. It is worth going back to the familiar case of BNP Paribas v Ms A Mezzotero (EAT/0218/04/RN). The employee raised a grievance under her employer's grievance procedure that she had been prevented from returning to her old job on her return from maternity leave. M attended a meeting at which she was told that B wanted to talk "without prejudice" and was offered the opportunity to leave B in return for a settlement package. Settlement was not achieved and M made claims, including of sex discrimination, to the employment tribunal.
The Employment Appeal Tribunal held that the evidence could be used, as in this case there was no genuine dispute, as opposed to the grievance. The grievance could be upheld, or dismissed for reasons acceptable to the employee, meaning that the parties might never actually be in dispute.
Also, under the without prejudice rule, one party may be permitted to give evidence of what the other said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other unambiguous impropriety, each of which has been held to constitute "unequivocal abuse of a privileged occasion".
In Mezzotero, above, the EAT also commented that it was in the public interest that allegations of unlawful discrimination in the workplace be heard by a tribunal. Discriminatory comments made in the course of without prejudice discussions would be admissible as evidence under the rule of unambiguous impropriety but it would be difficult to try and determine whether some comments do, but some comments do not, fall under the umbrella of unambiguous impropriety.
Resolving Workplace Disputes: Government Response to the consultation, published on 23 November 2011, confirms that certain conversations would be "protected" even where there is no formal dispute. We suggest, however, that the "unambiguous impropriety" rule arguably would apply, by analogy (if not expressly incorporated in some shape or form in any forthcoming legislation defining "protected conversations") to protect either employer or employee from the other party seeking to exploit the situation. Any express exclusion of this rule probably would contravene European law, certainly as far as unlawful discrimination is concerned. Logically, therefore, this would suggest that the protection that the Government seeks to introduce would not be as certain as it would like; for instance, if an employer asks an employee outright whether she is pregnant (so that the employer can plan ahead) knowing full well that that employee is very private and feels pressurised and exposed by such conversations, will that amount to a fundamental breach of trust and confidence (and sex discrimination) by the employer, and therefore an act of unambiguous impropriety by the employer depriving it of the protection afforded by the "protected conversation" category? Surely there already is scope for much argument around the grey areas.
Another question is to what extent employees actually would be protected if they complained about a superior, as No 10 has suggested (see above). First, if the employee, in good faith, discloses information which amounts to a protected disclosure, then she will be afforded the right not to be subjected to detriment or dismissal as a result of having "blown the whistle". If, however, another employee makes a complaint against, say, his superior, but the complaint does not amount to a protected disclosure, then how would the fact of a "protected conversation" help an employee? If the employer were to retaliate, unjustly, against the employee, the conversation potentially would not be admissible, and so the employer potentially would be in the advantageous position of not having to explain its behaviour in relation to that conversation, but still be able to adduce other evidence relating, for instance, to the behaviour of the employee. Alternatively, if the employee had raised a complaint in bad faith, would the employer be prevented from disciplining the employee in that regard? Or could the concept of "unambiguous impropriety" disapply such protection for the employee?
One thing is clear, as usual. On closer scrutiny of the proposal, the apparently well-defined concept gives way to the greyer, blurring hinterland of the law of unintended consequences. It is to be hoped that the announced consultation will enable such issues to be thoroughly debated before pen is put to the draftsman’s paper. Perhaps this is a good moment to remember that, in reality, there is nothing unlawful, and there is much to be commended from the perspectives of both employer and employee, in the parties sitting down to an honest, but respectful and non-discriminatory, exchange of views on an individual’s performance in the workplace.
Originally published by Thomson Reuters GRC. © Thomson Reuters
This article, written by Jessica Corsi, originally appeared on the Compliance HR website and in its newsletter.
