Can You Have A "Protected Conversation"?

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Date: 23/11/11

The Government has confirmed this morning, following David Cameron's comments earlier this month, that it is to consult on the introduction of "protected conversations" which, in Mr Cameron's words, would mean "a boss and an employee feel able to sit down together and have a frank discussion at either's request". Such a conversation could relate, for example, to poor performance or retirement. The aim is for employers to feel that these conversations can take place without the fear of employment tribunal proceedings being brought, or that they could be used as evidence.

As with all such proposals, the devil will be in the detail and it is unclear yet exactly what will be covered by such conversations and how far the protection will go. It is clear that employers would not be able to use protected conversations to cover discriminatory activity, but it remains to be seen how the proposals will work in practice. The risk for employers is that the proposals actually create more confusion and lead to more claims, not fewer, if employers and employees alike misunderstand the extent of the new rights.

Other key proposals include:

  • The qualifying period for unfair dismissal to be increased from one to two years from April 2012 with the aim of making it more attractive for employers to recruit and easier to manage and let employees go.
  • The introduction of fees for individuals bringing employment tribunal claims. The result of this might discourage vexatious claims, or "try-ons".
  • The introduction of a "rapid resolution scheme" to offer cheaper, quicker decisions on more straightforward claims and for such claims to be settled within three months.
  • The required consultation period for planned redundancies to be reduced from 90 days to as low as 30 days in order to give businesses flexibility with their business plans.
  • An overhaul of tribunals which would mean all claims initially go to the Advisory, Conciliation and Arbitration Service (ACAS).  Witness expenses would be ended and only one judge would be used in unfair dismissal cases.  Currently, a copy of the claim form and response will normally be sent to ACAS by the tribunal as ACAS has a statutory duty to endeavour to promote settlement under most employment protection legislation. 
  • A further consultation on simplifying the use of compromise agreements in which employers pay an agreed amount to an employee if both sides agree that a contract should end.
  • Companies employing fewer than 10 staff may be exempted from employment regulations in order to encourage small, start-up firms.

Whilst the aims of the proposals are to simplify red tape and reduce the number of claims faced by employers, most employers would agree that the proposals are a mixture of good and bad and there is no guarantee that they will achieve these aims in practice.    However, at present, no definite timescale has been given for the introduction of the above measures although the consultation period is expected to start shortly. 

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