In the recent raft of Employment law reforms, it is perhaps the introduction of the so-called “protected conversation” that has been most eagerly received by employers. The general idea is that an employer will now be able to have an honest conversation with an employee about performance issues and, in some instances, a possible departure from the company, without worrying that the conversation could be referred to if the matter ever ended up in a tribunal. This goes beyond the current “without prejudice” rules which require a dispute to exist between the parties for discussions to be inadmissible in future proceedings.
The idea behind the legislation makes a lot of sense. There are certainly occasions where an employment relationship has broken down and a protected conversation seemingly allows both parties to be more frank in exploring the issues and potentially agree on an exit (usually via a settlement agreement). If they are carried out properly, employees will not be able to subsequently rely on the conversations as evidence to support a constructive dismissal claim.
However, employers should still treat these conversations with caution, particularly in these early days of the new regime. Firstly, the cloak of confidentiality only applies to “ordinary” unfair dismissal proceedings. Where an employee brings proceedings for automatically unfair dismissal (for example, whistleblowing), or any other claim such as discrimination or breach of contract, the protection will not apply and then conversation will be admissible. Similarly, if an employee alleges that any improper behaviour occurred during the conversation, a tribunal will ask for the contents of the discussion to be disclosed. It is not completely clear yet what constitutes “improper” behaviour. Certainly pinning an employee to the wall and telling them there days are numbered will put the conversation firmly in the “improper” category. However, ACAS guidance suggests “improper behaviour” will also extend to undue pressure, discriminatory comments and all forms of victimisation.
Critically, the employee only has to make an allegation of, say, whistleblowing, discrimination or improper behaviour and a tribunal will ask to hear details of what was supposedly a “protected” conversation.
These limitations to protected conversations are the Government’s response to justified criticisms that the original plans for blanket secrecy would create a “bully’s charter”. It is therefore understandable that the final version had to be diluted. Employers just need to bear this dilution in mind when holding protected conversations and be aware that they don’t come with absolute guarantees of inadmissibility. As long as they do that, employers should still welcome the conversations as a chance to have candid, grown-up and professional conversations where both sides can either sort out their differences or decide to go their separate ways.