Part of the government’s call for evidence on compensated no-fault dismissals also deals with the latest wheeze to come out from the Department of Business, Innovation and Skills, which is to introduce what the government is terming “protected conversations”.
In the words of the latest consultation document, “We will consult later in the year on introducing a system of ‘protected conversations’, with the aim of enabling employers to more confidently raise issues such as poor performance in an open way, free from the worry it will be used as evidence in a subsequent tribunal claim”
The rationale goes something like this. It is presently common, in workplaces where a union is recognised, for an employer who is in the process of dismissing a worker to invite in the worker’s union representative for an informal and off-the-record (in lawyers’ speak “privileged”) meeting. At the meeting, the employer may make a settlement offer to the worker, sometimes a generous offer, which (if accepted) cuts off the possibility of a protracted dispute, saving both sides emotional distress and money.
The conversation has to be off-the-record because otherwise it might unfairly prejudice a party making an interim concession for the purposes of settlement only. EG an employer might say “for today, I’m willing to consider that the dismissal is unfair, in order to work out how much it might be worth to the worker, and so that I make a credible offer.” That doesn’t mean the employer actually thinks the dismissal is unfair, and if the worker was able to rely on that concession in later proceedings, you would simply never get any settlement at all.
Why not, the government suggests, introduce a similar process to benefit workers who aren’t represented, either by unions or solicitors?
The problems with the proposal are legion. Here I’ll focus on three:
1. The reason why protected conversations work between representatives is that (usually) neither side has an emotional engagement in the conversation. If you had the conversations directly between a worker and a dismissing manager, at around the time of dismissal, the worker would be constantly saying “I don’t want to be sacked” and the manager would be justifying the dismissal. IE save in the most unusual case, people wouldn’t focus on the merits or otherwise of settlement, but simply on the original decision. So “protected conversations” won’t get the benefit that’s intended for them.
2. One reason why the present system works is that there are safeguards built in for the worker. If the outcome of the conversation is an offer of settlement, that isn’t the end of the process. The worker also has the protection, before settlement is finalised, of advice from an independent representative. They may be a trade union rep, although usually it’s a solicitor and many solicitors use this process to genuinely interrogate the settlement offer.
At the same time as introducing protected conversations, the coalition is also contemplating allowing employer’s personnel departments to sign off settlement agreements on behalf of workers. IE the employer would formulate a settlement proposal, and the employer would decide whether it was a fair offer. This process is unbalanced, and very clearly opens up the possibility of protracted legal disputes – as soon as the worker gets to see an advisor of their own, and the advisor says to them: “you do know that the claim you settled for £500 was worth ten times that?”
3. One of the reasons the current system works is that – on the employer’s side – generally the negotiator isn’t the manager who took the original decision to dismiss, etc.
The government’s proposal is to push back “privilege” to an earlier stage: as the quote above from the BIS illustrates, the conversations they have in mind would be ones long predating a dismissal.
Experience of life teaches that employers generally support their own dismissal decisions, and generally react with unease (and sometimes anger) when they are challenged. This is one reason why claimant lawyers dislike unrepresented Respondents at least as much as respondent lawyers dislike unrepresented Claimants (or if anything slightly more). Owners of small companies fight over every penny and often have real difficulty granting legitimacy to workers who sue them (even when, from the perspective of lawyers or the courts, the workers are obviously right to do so).
Protecting dismissal-related conversations directly between the employer and the worker will mean that the worker will not be able to tell the Tribunal what was said to them during their dismissal. IE rather than protecting genuine settlement discussions; it will simply mean that the Tribunal can’t know what the worker was told when they began to challenge their dismissal.
In all sorts of routine circumstances – eg a standard misconduct dismissal – it may be that the employer will have said something that is genuinely prejudicial to their case. EG the worker asks “You’re telling me you think I had a fight with Harry, and we both punched each other. So why are you sacking me, but not Harry?” The Tribunal may genuinely want to know the employer’s original, unguarded answer. If the answer was given during a protected conversation however, the Tribunal could not be told.
But the worst of it would be if the employer blustered during the conversation, or became aggressive, or (as happens depressingly often) tried to bully the employee into resignation (perhaps because the employer did not understand that a worker who resigns can still, potentially, bring an unfair dismissal claim). Why shouldn’t a worker be able to bring this conduct, if it was oppressive, and if it casts light on the dismissal, to the attention of the Tribunal?