Protected Conversations Q&A
Employment Law & HR update 14/11/2011
Cameron promises “protected conversations” for
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
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
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
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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