Laurie Antsis has published on his blog a very thorough analyis of the provisions of the Enterprise and Regulatory Reform Bill which deal with protected conversations, and what follows should be read through the prism of Laurie’s piece, which very usefully reproduces the relevant passages of the Bill, which were only tabled yesterday.

I’ve already written about protected conversations, describing them as a bully’s charter, and I thought I should revisit that opinion now the draft clauses have been published.

To recap, protected conversations are the Coalition’s refinement of Adrian Beecroft’s proposal to take unfair dismissals for reason of capability out of the tribunal system, by enabling employers to settle them for, in Beecroft’s plan, a generous sum of money, but with no recourse to the Tribunal system afterwards.

The scheme, as now proposed, does not apply simply to capability dismissals but to all dismissals, and does not require the employer to make a generous offer, nor the employee to accept the employer’s offer, but simply prevents an employee from raising the fact of an offer with the Tribunal.

It is even a bit worse than that sounds, because while the employee wouldn’t be allowed to raise the fact that an offer had been made, the employer would be entitled to complain, in a costs application, that an offer had been turned down.

The wording of the section is as follows:

“(1) In determining any matter arising on a complaint under section 111 [i.e. an unfair dismissal claim], an employment tribunal may not take account of any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee.”

“(2) Subsection (1) does not apply where, according to the complainant’s case, the circumstances are such that a provision (whenever made) contained in, or made under, this or any other Act requires the complainant to be regarded for the purposes of this Part as unfairly dismissed.”

“(3) In relation to anything said or done which in the tribunal’s opinion was improper, or was connected with improper behaviour, subsection (1) applies only to the extent that the tribunal considers just.”

“(4) The reference in subsection (1) to a matter arising on a complaint under section 111 includes any question as to costs, except in relation to an offer made on the basis that the right to refer to it on any such question is reserved.”

“(5) Subsection (1) does not prevent the tribunal from taking account of a determination made in any other proceedings between the employer and the employee in which account was taken of an offer or discussions of the kind mentioned in that subsection.”

What litigation will focus on

Reading the above clauses, it seems pretty clear to me that there will be two main “tension points”.

First, is this a case where the limit on considering the protected conversation applies at all? In theory, the section draws a very neat distinction between cases which are ordinary unfair dismissals, leaving any other sort of case. But my hunch is that life itself will prove more complex. Take the familiar example of a dismissal which the Claimant complains was discriminatory: if the employer wants to hush up the fact of a “bad” protected conversation, will the employer make an application to have the discrimination claim struck out, ostensibly on some other grounds, but with a real motive of keeping the protected conversations out of the Tribunal’s view? Or, as Laurie points out, what about constructive dismissals? If a claimant sought damages for what was said at the protected conversation, the conversation would not be protected: but what if the Claimant had failed to include a claim for breach of damages in their ET1; would the conversation then be inadmissible?

Second, the prohibition on taking account of the protected conversation does not apply where a Tribunal considers anything improper was said or done, in which case the prohibition “applies only to the extent that the tribunal considers just.”

This gives the employer “two bites at the cherry”, both a defence that the conversation was not improper, and then a separate defence that it would be unjust for the Tribunal to consider a part of it.

While this provision is clearly supposed to protect against some of the scenarios set out in my previous post – e.g. where there was bullying conduct – the drafters of the legislation have tried to draw the line at a point which is as favourable to employers as could practically be acheived.

Looking back at my original post – and some of the examples I give there of the sorts of behaviour, by employers during a protected conversation, that a worker might want to raise at the Tribunal –

+ An unguarded remark by a manager which, if disclosed to the Tribunal, would indicate that the motives behind the dismissal had been unfair
+ A hopelessly premature settlement offer, indicating a premature decision to dismiss

The employer might well be able to keep these out of a subsequent Tribunal hearing on the basis that they were not “improper”

Or take another example – aggressive and bullying behaviour by a manager during a protected conversation

The sub-section allows improper behaviour to be revealed only “only to the extent that the tribunal considers just.”

To give (admittedly) a lurid example: the draft wording of the statute would have the effect that if a manager made an offer, and the worker said No, and the manager then (say) swung a fist at the worker; the employer could not escape the Tribunal considering the fist, but it might well not be required to consider the (probably more revealing) words that led up to the final confrontation.

In real life, of course, bullying isn’t usually about fists, so much as words and demeanour – but why should the employer have two chances at persuading a Tribunal to disregard its managers’ inappropriate behaviour?

The scheme, in short, is still a bully’s charter.