Much squawking in the UK media hen-coop this week about proposals by the Government to introduce into the UK workplace the concept of the “protected conversation”. Put shortly, this is designed to allow employers to raise questions with employees which in the ordinary course of events would risk landing them in the Employment Tribunal. These may currently be summarised as “When are you planning to retire?” and “If we give you some money, will you go away?”.
The theory behind the concept is unimpeachable. The recent CBI/Harvey Nash Employment Trends Survey reported that more than 20% of employers cite uncertainty about their current management’s retirement plans as an obstacle to recruitment. All sorts of decisions can hang upon an employee’s intended departure date – whether to recruit or groom a successor, whether to invest in further training and where to focus the remuneration budget, for example. So being able to ask for an insight into the employee’s plans without this being constructive dismissal or age discrimination is in principle very useful.
Similarly, all employers will be familiar with the situation where you want the employee to leave, he wants to leave, you know he wants to leave but both parties are advised to pretend otherwise for the sake of their negotiating position. An overture to go made by the employer in those circumstances, clearly the commercially sensible course, merely allows the grateful employee to seize upon it, not as the opening of the door to a grown-up chat about terms, but as a constructive dismissal and/or victimisation claim.
Although promising in principle, however, there are three significant problems in practice.
The first already exists, i.e. that even if the employee does talk about his retirement plans, what he says does not bind him in any way, even if the employer acts in reliance on it.
Second, and more significantly, even if the conversation itself is protected, what about those actions or decisions taken in consequence? There is no point in being allowed to ask about retirement plans if you cannot act safely on the answer, but there has been no mention in the press of the protected conversation extending into the protected consequential steps.
Last, there seems little clarity thus far as to how far the protected conversation concept will go. Starting from reports that it would apply solely to retirement plans and severance discussions, the BBC news website BBC News – Home reported earlier this week that it could also cover “frank” conversations about poor performance “without them (sic) being used in future Tribunal claims”. But surely the employer would actively want to be able to rely in Tribunal on any exchange with the employee about his performance? Unless “frank” is shorthand for discriminatory or abusive, of course, which cannot be the intention.
These bigger-picture issues must be resolved before this proposal goes much further or they will cost both the protected conversation concept and Business Secretary Vince Cable a great deal of credibility.
