Government announces shake-up to employment law with a consultation on 'protected conversations' about poor performance

David Woods , 23 Nov 2011


The Government has announced a consultation on ‘protected conversations’, to allow employers to have ‘frank’ discussions about poor performance with employees without fear that they could be used as evidence in a tribunal.

Proposals announced this morning also include a call for evidence on the length of time required for a consultation period on planned redundancies, in a bid to reduce this from 90 days, to 30 days.'

In it's bid to reduce red tape around employment legislation, the Government is also consulting on a requirement for all claims to go to the conciliation service Acas before reaching employment tribunal and the options for a scheme to allow for more simple tribunal cases to be settled within three months.

James Wilders, employment lawyer at Dickinson Dees law firm said: "The Government's proposal to introduce protected conversations is a fascinating development. Often employers are inhibited from speaking openly to staff members about issues such as retirement and performance for fear of the conversation being misconstrued or of undermining any subsequent procedure. This proposal will provide employers will an opportunity to have an honest and frank discussion with an employee without it being held against them at a later date.

"However, it will be interesting to see how the Government proposes to put this into practice. So often the devil is in the detail. The idea of protected conversations is novel and refreshing, but whether it will work or not depends on how it will be implemented."

But trade union Unite branded the announcement 'a charter for bullies and rogue employers'.

Unite's general secretary, Len McCluskey said: "At a time when unemployment is at a 17-year high and youth unemployment has topped a record one million, it is appalling that this government should concentrate on making it easier to fire people, rather than getting people back to work.

"Ministers are hell-bent on removing long-established rights at work, making dismissal easier and promoting a culture of fear in the workplace. These proposals are a charter for rogue employers and bullies.

"If ministers praise our 'flexible' labour market, then what problems is this concerted move against working people meant to be solving? Vince Cable knows there is no business case for this, whatsoever, other than for the right-wing ideologues in the coalition to curry favour with the pressure groups like the CBI and the unaccountable Taxpayers' Alliance.

"And the Government has yet to set out how this will create one single job. The problems we face as a country, with the highest jobless rates for generations, are profound. Yet the only solution that this government can conjure up is to drill away at employment rights.

"As the evidence shows, and this Government knows only too well, any spurious claims are rooted out by the system early on. It is not the claims that are vexatious, but this government's argument."

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Protected Conversations

Vicki 23 Nov 2011

I always become very frustrated with Unite. They offer such a one sided view. Surely if they had a member of their organisation who was performing poorly they would want to have a conversation about it. It is not about 'firing' people or being unscrupulous. It is being free to discuss performance and hoping for an improvement.

Unite and Poor Performance

James Jones 23 Nov 2011

Unite seem to believe that all their members are performing at a high level and do not like any form of performance management. The benefit of such protected conversations should be to allow performance issues to be addressed informally but effectively rather than employers having to take formal routes becasue of a lack of trust between them and the unions. There is no mention of firing people and increasing unemployment until Unite speak, but maybe if performance was improved then unemployment would not be as low as it is. When are unions going to wake up to what is going on in this world!!!

Giving quality feedback is this answer

Jenny Shorten 23 Nov 2011

I agree there is a problem in dealing with poor performance in many organisations. As a learning professional I often meet managers who don't have the skills to give good quality feedback about performance to their staff, but I am not convinced this is the answer. If a manager is addressing the problem the person's behaviour causes, rather than attacking the person and discussing what they are going to do to change that, they shouldn't need protecting in my view.If they do find themselves at a tribunal despite this, then it is the system that allows inappropriate cases to proceed that needs most work.

Government Proposals

Terry Wright 24 Nov 2011

I largely agree with Jenny's comments. I would like to see examples of what messages the government thinks could be conveyed in a "protected conversation" that could not currently be done by a skilled manager without prejudicing a tribunal case. The fact that an employer has given an employee information about any performance shortcomings and sought to help the employee address these whilst spelling out the consequences of failure will normally be helpful to the employer at a tribunal.

A bit of balance required here!

Mark Law 09 Dec 2011

Originally, this was introduced with examples around the issues that the abolition of the DRA have thrown up. Not performance. As our friend Rick commented elsewhere:- "When I first heard this suggestion I thought it was quite a good idea. I know of so many situations in which managers would have liked to have had a ‘cards on the table’ conversation with an employee but did not do so for fear of having their words thrown back at them in a tribunal hearing. Usually, these are cases where someone has inherited a team member who has not been properly managed in the past and who is conspicuously failing to deliver. Often, the person’s behaviour and style of working is damaging the rest of the team. The manager knows that, even with all the development, coaching and performance management in the world, this person is not going to meet the standards he requires. What he wants to do, therefore, is say, “Look, do you really want to go through this painful performance management process when we both know what the outcome will be? How much do you want to call it a day?” I’ve known a number of managers who have found themselves in this situation where they want to pay the employee off, they suspect the employee is waiting to be offered a package yet they still have to go through the motions for fear of being deemed to have sacked someone if they suggest a payoff. For some the introduction of ‘protected conversations’ would be like a gift from heaven. But then I thought it through. As with all these suggestions, something that works well in one set of circumstances could be misused in others. As an employee, would I be prepared to agree to a protected conversation if I didn’t know what my boss was going to say? What if, as soon as I’ve signed on the dotted line saying the conversation is protected, my boss says, “Right, Rick, if you don’t take this money now and f**k off, we are going to make your life hell. You’ll either leave here sacked for poor performance or with a nervous breakdown. Either way, you’ll get a terrible reference and I’ll make sure you never work again.” At this point, I would wish I hadn’t agreed to the protected conversation. I’d want to repeat all that at my tribunal. I can’t, therefore, see how any of this would work in practice. Would employees agree to protected conversations? Alternatively, employers might be able to unilaterally declare their conversations protected. If so, employees would never be able to repeat many of their employers’ browbeating threats in court, effectively weakening the legal protection from unfair dismissal and unfair discrimination. No, like the extension of the unfair dismissal qualifying period, protected conversations are another of those sops to frustrated managers which might look like a good idea but which won’t really change much. They might help some managers in some situations but they will do little to improve the performance of most organisations. And that’s the big lie about all this stuff. Tinkering with employment law in this way will not make the economy grow any faster. At the risk of repeating myself ad nauseam, this country is not in the doldrums because of regulation. Other countries with a lot more of it are doing better than we are. If any of the advocates of these changes in employment law, the CBI, the IoD or the Chambers of Commerce, for example, can come up with any evidence to show that employment law (or any other regulation for that matter) is a significant barrier to Britain’s economic growth, I’d love to see it. Regulation can be frustrating. No-one is arguing with that. But some of it is necessary and one person’s irritating red-tape can be another person’s invaluable protection. Those who would scrap employment laws want to do so simply because they don’t like them. The economic arguments they use as cover are entirely spurious."

In this issue: September 2015
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Shared value: Why the investment community is getting interested in human capital

Continuous improvement: Re-engineering HR at IMI

Out and proud: John Browne on inclusive workplaces

Retirement planning: Shake up your pensions strategy

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