The headlines were grabbed yesterday by the leak of the Beecroft report’s proposal to abolish unfair dismissal in capability cases. Only slightly less newsworthy was Nick Clegg (the Lib Dem Deputy PM, leader of the supposedly caring party of government) announcing proposals to allow employers to have “protected conversations” with employees. This is all part of the same agenda to cut red tape for business and to allow employers to get rid of underperforming workers and, interestingly, to discuss retirement with older workers, without the fear of being hauled off to an ET.
Is Clegg protected?
At the moment some employers try to have “without prejudice” conversations with an employee where things are going wrong but, strictly speaking, without prejudice only provides privilege from disclosure if it is an attempt to settle a dispute. An initial discussion to say “you’re not up to the job” or “here is a compromise agreement, take it and leave or otherwise we’ll discipline you” wouldn’t be covered. A “Protected Conversation” presumably intends to cover these preliminary discussions prior to the actual settlement negotiations, if it ever gets that far.
Other employers might want to suggest having an “off the record” conversation, but nothing is ever really off the record and this only works if both parties want it to. So, as a method of dispute resolution or even dispute prevention, in principle it isn’t a bad idea. I just wonder how it would actually work in practice.
Rick, from Flip Chart Fairy Tales has written an excellent blog on the subject – click here – and I won’t repeat the points he makes. XPert HR has also blogged giving 15 reasons why protected conversations won’t work. Reason number 8 is worth careful consideration: you can just see this being abused. Reason number 3 is also very valid. The abolition of retirement is not yet a year old and already the government is looking for ways to circumvent it. Expect challenges under European legislation if protected conversations are brought into law.
The government should have learned its lesson from the 2004 statutory dispute regulations – on paper they looked simple enough but in practice were a complete nightmare and had to be abolished in 2009. What often looks like common sense as a headline grabbing initiative, actually proves unworkable once put into practice. Employers will probably come to find them not the solution they thought them to be once the actual details are in place – which will be hugely complicated and will need a whole HR department to make them work. Far from cutting red tape it will increase it.
We’re promised a “major package of employment law in the autumn aimed at helping business, including reform to employment tribunals” – it will be well worth the wait.
I see protected conversations as a further opportunity to promote dialogue in the workplace rather than the immediate jump to a ‘grievance’ or ‘formal procedures’. There are many suggestions about how this can be ‘abused’ but few about how it provides the opportunity to prevent that ‘all or nothing’ approach to discontent in the workplace….it is either ignored until it can no longer be sustained, and then it is straight to the formal procedures. A protected conversation is a useful opportunity for managers to have constructive discussions with employees – and an opportunity for employees to raise concerns without screaming from the rooftops. Many of the fears expressed seem to lack a sense of how any constructive discussion could occur – is that more of an indication of the need for managers to develop more effective communication skills? Some comments I have seen on this topic on other blogs seem to indicate that all conversations with employees have to be guarded and fearful and adversarial. Perhaps it’s news to those contributors that there are some employers out there who actively encourage ‘challenging’ conversations with employees because they lead to change and learning and improvement in their organisation. Protected conversations would make those outcomes more available and more possible.