Employment law update - protected conversations and without prejudice negotiations
The government has announced proposals for a number of employment law reforms. One of these proposals is the introduction of protected conversations.
For further information on these proposals please see the ‘Resources’ section below.
At the moment an employer who wishes to have a frank conversation with an employee which may in part propose that the employee leaves the company under a financial settlement incurs a considerable risk that that conversation will be used as the basis for a claim in the Employment Tribunal.
The rationale for introducing protected conversations is to permit employers to sit down with employees, at either the employer’s or the employee’s request, in an environment where the discussion has an element of privilege attached to it so it cannot be used by or against either party in any subsequent proceedings. Possible areas where discussions in these protected conversations include an employee’s poor performance or their retirement plans.
It is hoped that as a result of highlighting an employee’s shortcomings in a protected conversation that the employee would then improve their performance and that employers will not be concerned about employees bringing claims of constructive dismissal following the protected conversation. Similarly by being able to discuss their employees’ retirement plans, employers will be able to better plan their resourcing needs for the future, without having to worry about the employee bringing a claim in an employment tribunal.
The government has announced that protected conversations status will not extend to protect discriminatory acts.
Although 'protected' conversations do not currently exist it is possible to make ‘without prejudice’ statements. The effect of these is that they are inadmissible as evidence before a tribunal/court unless both parties agree to the contrary. There is a public policy reason for the ‘without prejudice’ rule - it is to encourage the settling of disputes without litigation.
In order to qualify as a ‘without prejudice’ statement, the statement must be made in a genuine attempt to settle an 'existing dispute' – a claim must either have been made or threatened. As this often will not be the case in situations where an employer wishes to initiate a discussion, it is for this reason that the government has decided to introduce the concept of protected conversations.
It is possible that the law on protected conversations may be by way of an extension of the ‘without prejudice’ rule. The current state of the law is in many ways unsatisfactory and any means which can facilitate discussions of this nature (with appropriate sanctions to prevent abuse) will be welcomed by employers.