As part of far-reaching plans to overhaul the employment law system, the Government has announced plans to allow employers to have "protected conversations" with staff so under-performance can be addressed frankly. It is intended that such conversations should be able to go ahead without any risk that comments made by the employer could be later used against them as part of an Employment Tribunal claim.
The plans are welcome news for many employers and HR professionals who, to date, have felt that managing performance issues is more trouble than it's worth on the basis that it could trigger, or contribute to, future claims. Introducing measures to help employers to address this is an important step forward, which will be viewed as helpful.
However, the plans have not yet defined the nature and formality of these "protected conversations" and it is likely that consultation will be required to provide specific guidance in this area.
Undoubtedly, employees involved in such conversations with their employer will need to be sheltered from any potential discrimination relating to their age, gender and sexual and/or religious orientation. Employers also have a duty of dignity and respect to their staff, which is an inherent part of employment contracts and this should not be breached.
While it is important that employers wait for guidance on how they may be able to use "protected conversations" in the future, they should also be aware that there is nothing to stop them having open and frank conversations with employees now about performance-related matters. Of course, such conversations should be well evidenced.
Other proposals announced by the Business Secretary will be viewed positively by employers. He announced plans to launch a 'call for evidence' about two specific proposals intended to benefit small businesses. One is a proposal to introduce compensated no fault dismissal for micro firms, with fewer than 10 employees. The other is a proposal to streamline existing dismissal processes by working with the Advisory, Conciliation and Arbitration Service (Acas) to change their Code or provide supplementary guidance for small businesses.
The proposed changes are significant, and if implemented, could bring an end to the culture of non-management of workplace performance that currently exists within many UK businesses. However, in delivering these changes it is important that employers' needs are balanced against the need to treat employees fairly and without compromising their employment rights.
Paula Whelan (pictured), is an employment law partner at law firm Shakespeares
