Protecting Conversations

25 June 2012

An amendment has been proposed to the Enterprise and Regulatory Reform Bill, introducing protected conversations. Laurie Anstis has written an excellent post summarising the proposal.

Basically, it introduces protected conversations prior to dismissal, which the tribunal will not take into account when considering an unfair dismissal case. There are a number of exceptions. So the protected conversation rule won’t apply where the employee alleges that the dismissal was for an automatically unfair reason; where the conversation is in some way improper (but only to the extent that the tribunal considers just) or in relation to a costs application where the employer reserved the right to refer to the offer in such an application. Finally, where there are other proceedings between the employer and employee, which have led to a determination based on a protected conversation, that determination can be taken into account when considering the unfair dismissal claim.

This seems to me a fairly radical step. Excluding evidence from a tribunal is a serious thing. In general, civil courts and tribunals hear whatever evidence is relevant. There are exceptions, but they have clear and compelling public policy justifications. For example, people need to be able to talk to their lawyers candidly, so we have legal advice privilege. Parties to litigation need to be able to speak frankly during settlement, so we have the without prejudice rule.

The aim of this proposal is to give employers the confidence to have open conversations with their employees with the intention of negotiating their departure, secure in the knowledge that these conversations will not be considered by the tribunal.

Is that a compelling public policy justification?

Personally, I don’t think it’s even a sensible aim. I share David Renton’s concerns that it will encourage bullying under the cloak of protected conversations. I also think that there will be a problem with unrepresented employees, who may take at face value their employer’s assertion that a conversation is protected, without considering the more subtle issues.

Beyond that the whole idea undermines sensible management practice. If an employer has a problem with an employee, particularly one of misconduct or failure to perform, the best thing to do is to deal with that problem directly. Get the employee in, explain the concern, and take sensible steps – whether those be an oral warning, some additional training or a formal disciplinary process resulting in dismissal.

Encouraging employers to immediately try to buy their employees off instead strikes me as a bad idea. Not least because it encourages the canard that employers are at the mercy of their employees and their only option is to reach into their pockets when things go wrong.

Will the proposal give employers confidence?

Imagine that you are an employer, with a misbehaving employee. You are considering having a protected conversation, so you go to your friendly neighbourhood employment lawyer for some advice.

She will tell you that, if you discuss terminating the employment on terms, the employee won’t be able to refer to that conversation before an employment tribunal.

Unless that is, the claim is for anything other than unfair dismissal, in which case they can in relation to that claim. Or they allege that the dismissal was for an automatically unfair reason, in which case they can.

Or the tribunal thinks that something you said during the protected conversation was improper in which the tribunal will decide how much of the conversation it is just to consider. If you ask what might be considered improper, you will get a cautious reply, because your lawyer knows that this will have to be thrashed out over multiple cases in the Employment Appeal Tribunal and probably the Court of Appeal.

If you say ‘That’s okay, I’m a very proper person. I’m never going to do anything that anyone could possibly object to.’ your lawyer will probably warn you that employees have been known to misunderstand or misinterpret what they’re told by their employers – especially when they’re in a stressful situation. So even if you do nothing wrong, and your employee is honest about what happens, you still might end up arguing about whether you acted reasonably.

Anyway, the lawyer might ask, are you very sure that none of your conduct up to this point could be considered improper? Because if it could, the protected conversation might be connected with improper behaviour and, again, the tribunal will have to consider to what extent it is just to protect it.

At this point, you are probably feeling fairly confused and depressed. But your lawyer is still talking.

Incidentally, she says, if your employee does bring another type of claim, such as a discrimination claim, and wins based on some evidence from the protected conversation, that determination will be taken into account.¹

‘So’, you ask, `What I said in the protected conversation would be taken into account if they win a discrimination claim?’

‘No’ she explains apologetically, ‘Not the content of the conversation. Just the determination that you’d discriminated. None of us are quite sure what that means. But there’s a very interesting EAT case coming up that might explain how tribunals should approach this.’

‘This sounds very complicated.’ you might say. ‘All I want to do is sort out this situation with my employee. They’re just not getting any work done, because they’re constantly arguing with me about their overtime entitlement.’

‘Ahah.’ says your lawyer, ‘If you’re already arguing about wages, then perhaps the Without Prejudice rule will apply. That would mean the whole conversation would be privileged under the general civil law. But, of course, if we got to a tribunal, we’d have to establish that you were already in an existing dispute.’

So it goes. By the time you leave I suspect you’ll have decided that protected conversations are more trouble than they’re worth.

When employers persevere?

A lot of employers will embark upon protected conversations anyway. Either because they think the risks and complexities are worth it or they begin without thinking the complexities through. I suspect a significant number who do will regret it.

Generally, this won’t be because employers lose cases that they’d otherwise have won. Often, whether a protected conversation is considered or not, won’t matter much. Employment Judges know perfectly well that settlement offers are made for all sorts of reasons. Once the legislation allows for protective conversations, Judges aren’t going to punish employers just for having them, even if they bobble the process. Nor are they going to leap to unjustified conclusions at the drop of a hat.

That does leave justified conclusions, where the employer has acted badly and the content of the protected conversation helps prove that. But if an employer acts badly, attempts to have a protected conversation, gets that wrong too and the tribunal reaches a justified conclusion, I’m not terribly sympathetic. I also think a lot of those employers would have lost anyway, because I think tribunals get more cases right than they get wrong.²

Mostly, however, employers will regret attempts at protected conversations, because they’re being sold as a simple way to resolving employment disputes, without the possibility of blow-back later at the tribunal. So they will enter them expecting them to make the situation easier.

They won’t, because of the complexity of the rules about when the conversation is considered and when it isn’t. When they get to tribunal employers (and employees) without legal advice are going to find it difficult to argue about what should be considered. They will also find it difficult to present the rest of their case, without referring to the protected conversation.

Rather than making discussions with employees simpler and more certain, the proposal make it more complex and doubtful.

Looked at from a strictly legal sense, they may help employers. They nudge the balance in their favour, by allowing them to act in certain circumstances, without having to justify those actions to the tribunal later. But the cost of that nudge is the introduction of a complicated system that must be navigated – with the risk of getting lost.

Ultimately, I think it will cause employers more trouble than it saves.

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A number of hat tips for this post, because I have been discussing the issue on twitter. Thanks to @DazNewman, @ljanstis, @MarkTarran, @seanjones11kbw & @S_Levinson for their thoughts.

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