David Whincup’s post of 25 November about the concept of a “protected conversation” got me thinking, particularly in the context of performance management. My thoughts led me to question what a manager would say to the employee in a protected conversation that he would not say in an open performance management conversation.
Throughout my HR career I have counselled managers about the problems that arise when they avoid talking to their employees about performance, especially when an employee is not performing. My mantra when advising managers about this is “clarity and consequences”. It is imperative for a manager to be absolutely clear when they discuss poor performance with an employee on a number of fronts. The manager must ensure that he expresses clearly what the performance issue is, what he expects to improve, when he expects the improvement and what the consequences may be if there is no improvement. After all it is only fair that an employee should have every opportunity to improve, and if he is to be given this opportunity he must have this degree of clarity. Indeed, an effective early intervention by the manager may prevent the need for “protected conversations” and Tribunals altogether. In reality, some employees do improve and working life moves on. In some cases they don’t and the performance management process moves on instead, which may lead ultimately to dismissal. In those circumstances the employer will be only too keen to get evidence of his performance conversation with the employee in front of the Tribunal.
Bearing this in mind the only advantage I can see for allowing a “protected conversation” in a performance context is that the manager may believe that he is be able to fast-track the process by expressing his honest opinion about whether he believes the employee is capable of improving or not, a sort of “We both know this isn’t going to work, so why don’t we do a deal to let you leave now?”. However, unless his opinion is based on some reliable and reasonable evidence or insight it could open up a can of “discriminatory or abusive” worms.
And whether there is some objective basis for the performance concern or not, how can a manager later say in Tribunal (sworn to tell the truth, the whole truth and nothing but the truth) that the dismissal was not pre-determined? Without prejudice exchanges merely require the parties not to talk about them, but taken to their logical end, protected conversations about performance would seem to require active perjury by the employer. As David’s post says, some early clarity on this is vital.
