Weekly Employment Update - 24th November 2011

Welcome to Ashfords' Weekly Employment Update, where each week we consider recent developments in Employment and HR issues. This week, Governments plans to allow employers to have "protected conversations" with their employees.

The Government has announced plans for "protected conversations. Nick Clegg recently stated that employers are "afraid to have frank discussions with staff for fear of those exchanges being used against them unfairly, should a dispute end up at tribunal,".

As the law currently stands, any discussions between an employer and an employee can be used during Tribunal claims which may follow. This includes conservations off the record or more commonly known as "without prejudice" discussions. Employers therefore need to be careful to avoid making comments that could be used.

The Government's proposed concept of "protected conversations" will enable an employer and an employee to sit down together and have a frank conversation at the request of either party.  The conversation would attract "without prejudice" status, meaning that nothing said in a protected conversation would be able to be used in a Tribunal claim.

This will be even more important now that the default retirement age has been abolished. ACAS do already recognise "workplace discussions" as a way of considering the issue of retirement.  These are regular meetings, perhaps built in to the annual appraisal process, held to discuss an employee's future plans, irrespective of age.  However, employers have become vulnerable to age discrimination claims on the back of commercially legitimate discussions with individuals about their future plans and their ability to continue to carry out their job role.  Protected conversations will give employers the confidence to discuss these issues with employees without the fear of having that conversation used against them in a Tribunal, which will in turn aid workforce planning. 

Some critics have argued that the proposal, if implemented, will allow employers to put pressure on employees without the fear of action being taken against them.  However, employers will still have to follow the proper procedures if they wish to dismiss an employee. Furthermore, it is envisaged that the proposal will result in grievances being resolved at an early stage and costly Tribunal action being avoided. It is also hoped that protected conversations, alongside a raft of other proposals to deregulate businesses and cut back on bureaucracy, will encourage employers to create more jobs.

For the time being, employers need to be careful in what they say to their employees, taking advice if required.  To minimise disputes, proper records of these meeting should be taken and the employee asked to confirm that the record is accurate.

Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.