Latest developments on the so called “protected conversation” at work - our analysis and views
Last week the government published the so called “protected conversation” amendment to the Enterprise and Regulatory Reform Bill (“ERR Bill”). In summary the following is proposed:-
A settlement offer (eg generally an offer of money to an employee in exchange for leaving the organisation) and discussions relating to that offer would be ‘protected’ (ie deemed inadmissible as evidence at an employment tribunal) in the event of any future unfair dismissal claim. The protection only applies to unfair dismissal not any other employment claim (such as discrimination). There are several exceptions where the protected conversation rules won’t apply, these are:-
- where the making of the offer or the discussions relating to it are ‘improper’ ( improper conversations will only be admissible to the extent that a tribunal considers just);
- where the employee/ex-employee alleges that the dismissal was for an automatically unfair reasons (eg where they allege the dismissal was because of pregnancy, whistleblowing etc);
- where the parties have been involved in proceedings other than unfair dismissal (eg discrimination, breach of contract claims etc) and those other proceedings have lead to a determination (eg a judgment) based on a conversation that would have been protected in relation to an unfair dismissal claim, then that conversation will then not be protected in relation to any subsequent unfair dismissal claim. This comes across as “protection removal” by the back door;
- in a costs application by the employer at an unfair dismissal claim, where the employer has previously made a “without prejudice save as to costs” offer during a protected conversation;
The above tells us, that what the government is proposing is a very watered down and qualified idea of the “protected conversation” that it originally advocated last year.
We don’t think the clause is particularly good news for either the employer or the employee and is likely to lead to both parties having concerns about how they navigate around all the traps laid by the proposed clause.
‘If it isn’t broke don’t fix it’
This is very much how we feel about the current without prejudice rules viz-a-viz the government’s new clause: we don’t think that there’s anything fundamentally wrong with the current without prejudice rules:-
Yes, it’s true that an employer can’t currently have a “pre -dispute”/”out of the blue” protected conversation with an employee - some think this is a problem for employers. However, as John Morris, a member of the Law Society’s employment law committee said to the Regulatory Reform Bill Committee last Thursday:
‘it is not difficult for their to be an existing dispute. you talk to the employee, as I have just mentioned and say, ‘we have issues about your performance. We are going to take this forward in a formal process’ /there is a dispute.
‘However, we can talk about settlement if you prefer without prejudice.’
If the idea is to make things easier for businesses, in particularly small businesses, wouldn’t it be better if the government spent just some money better educating small businesses about the current without prejudice rules and how to use them rather than trying to re-invent the wheel?