Protected Conversations Q&A

Employment Law & HR update 14/11/2011

Cameron promises “protected conversations” for employers

In a speech last week, Prime Minister David Cameron outlined plans for employers to be able to have “protected conversations” with staff, in a move aimed at removing the “fear factor” many employers have about aspects of employment regulation.

The idea comes as a key element of the government’s growth agenda, aimed at freeing up business to create employment and growth. According to Cameron, “if employers are so concerned about the prospect of being taken to tribunal that they don’t feel they can have frank conversations with their employees many companies just won’t feel able to create jobs in the first place”.

What is a “protected conversation”?

A “protected conversation” is a device to allow employers to discuss certain issues openly with individual employees, without the need for this to form part of any disciplinary or other procedure. Issues discussed might include the employee’s work performance or the employer’s plans for restructuring job roles.

Additionally, employees themselves could initiate a “protected conversation” – this might be about matters such as testing the waters about the possibility of part-time working, without the need to make a formal request.


Why are they being proposed?

Many employers complain that current rules make it virtually impossible to speak openly to individual employees, particularly about performance issues or retirement plans, without this being part of a formal procedure or running the risk of a discrimination or constructive dismissal claim.

Even the rules on ending employment by an agreed “compromise agreement” (where both sides agree that employment should be terminated in return for an agreed payment, which usually remains confidential) require there to be a “dispute” before such an agreement can be discussed.

What are the benefits?

Under the proposals, it is likely that employers will be able to speak directly to employees about poor performance or retirement plans, without the conversation being “on the record”.

An employer might, for example, make it clear that the employee’s performance is unsatisfactory, and that it might be in the employee’s interests to consider his or her position rather than face formal action.

Another example is where an employer might want to have a discussion about an older employee’s retirement plans, without running the risk of a claim for age discrimination.

What are the downsides?

Whatever the government’s rhetoric, a “protected conversation” will itself need to follow some sort of procedure, or else it will run the risk of being seen as discriminatory or unfair. So there will be yet another procedure for employers to understand and risks associated with failing to follow the procedure.

There is also the question of whether union or other representatives will be allowed to be involved in the conversation.

Additionally, there is a real danger of such conversations fatally undermining the employment relationship between employer and employee, leading to claims further down the line.

When is this likely to happen?

It is clear the government wants to make real progress on changing the employment regulation agenda, so a short consultation followed by implementation during 2012 looks likely. Watch this space for further information.


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