'Protected conversations' and joined-up Employment law policy?

Posted by Ruth Christy on
The leaked report of venture capitalist Adrian Beecroft proposing that the law of Unfair Dismissal be replaced by "compensated no fault dismissal", apparently giving employers the right to fire at will, has indeed sent shockwaves through the HR community.

It is still not quite clear whether the bold recommendation (allegedly one of many) will be taken seriously by the Government.

The cynical might think the leak was deliberate to gauge opinion on the matter, but the response from the usual employee and employer groups can hardly have been a surprise. Downing Street has so far indicated it is "unlikely" to be introduced, with Vince Cable going further and rejecting it.

Perhaps more likely to be implemented is the proposal unveiled by Nick Clegg for 'protected conversations' to allow frank discussions to take place between employer and employee without fear of it being used in an Employment Tribunal. Clegg cites conversations about performance and retirement as examples where employers need confidence to be open with employees.

Many HR professionals will be aware of the concept of 'without prejudice' discussions which cannot be used in evidence in legal proceedings, but not all are aware that this is a specific common law principle which does not always apply. It will not apply if, for example, there is no existing dispute or contemplated litigation when the conversation takes place.

There are also a number of exceptions established by case law, (e.g. to prevent it being a 'cloak' for discrimination) and circumstances in which the 'privileged' nature of the discussions can be waived (perhaps even unintentionally).

Not all HR professionals realise, when they select Employment law advisers, that there are fundamental differences between Employment law solicitors and HR 'consultants' in this regard. Advice about a grievance given by an HR 'consultant' could be disclosable to an Employment Tribunal, whereas the same advice from a qualified solicitor who is on the Roll of the Supreme Court would not be.

The proposal for 'protected conversations' as a way of resolving disputes informally has therefore been well received by employer groups. But the series of leaks, premature announcements and backtracking about employment law reform appear to be undermining the aim of joined-up policy making.

The doubling of the qualifying period for unfair dismissal claims was published, then characterised as a drafting error, and then confirmed, even before the Government's Response to  this year's consultation on ET reform has been published (it is expected later this month). That was quickly followed by George Osborne announcing some details about a system of fees to be introduced in Employment Tribunals, again prior to the formal consultation on the matter (also due to be launched this month).

Indeed, the Administrative Justice and Tribunals Council (AJTC) has refused to comment on one piece of draft legislation, stating that recent developments create an "overall general impression of ill-considered and hasty policy making". They may not be alone in that view.

We will continue to keep you updated.

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Ruth provides guidance for clients and keeps them up to date with the fast pace of change in employment law.

Ruth Christy
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