The Government has confirmed that it intends to launch a consultation on the introduction of an Employer’s right to hold “Protected Conversations“ with employees. To underline the importance that the Government attaches to the proposal, the details were outlined by the Prime Minister rather than Ian Duncan Smith, or one of his underlings.
In essence, the proposal would allow for conversations to be held between an employer and an employee that would be inadmissible in any Employment tribunal proceedings. It would, said Mr Cameron, allow:
“….. a boss and an employee (to) feel able to sit down together and have a frank conversation – at either’s request”
The proposal has been put forward after a previous suggestion that “no-fault” dismissals should be introduced was turned down - presumably, on the grounds that no Government should present the Opposition with a sitting duck to shoot at, with quite such alacrity. As someone who has frequently sat, grinding my teeth, through performance or disciplinary meetings where one or other of the protagonists has said things that will come back to haunt them in court, you might think that I would be in favour of a proposal such as this. I am not, however, and here is why.
In the first place, I doubt that any employee is going to find a Protected Conversation useful or helpful. If I have a problem with my employer, and I want to discuss it, I will almost certainly want it to be a matter of record, whether it is an informal discussion about my concerns, as part of an appraisal, or a formal grievance using established procedures. I cannot really think of any circumstances in which I might want to hold an off-the-record conversation unless it were to blow the whistle on something – in which case, I would have statutory protection against unfair treatment in any case. So – it’s a one-way street, of use only to employers.
Secondly, and more significantly, I can see such conversations being used, by unscrupulous employers and managers, to put unfair pressure on employees, safe in the knowledge that they can say whatever they wish without fear of the consequences. In particular, bullying managers will see it as a way of putting pressure on vulnerable colleagues without fear of repercussions. Claims of workplace bullying are, of course, easy to make and are sometimes abused by those making them, to deflect legitimate criticism from themselves. However, at one time or another in the course of our careers, we have all seen bullies make the lives of some of their colleagues a misery, through their behaviour, and I don’t believe that we should be enacting legislation that would effectively give such people carte blanche to carry on like this, unchecked.
Providing a fair legal environment in the field of employment is always a balancing act, but in this case the fulcrum is being pushed too far towards the employer. This is a bad proposal and it will make for bad law if it is enacted.