Coalition Government proposals to introduce ‘protected conversations’ risk “creating a field day for employment lawyers and a nightmare for businesses”, experts have warned.
Among a raft of proposed changes to UK employment law mooted by Business Secretary Vince Cable this morning, one of the most controversial was enabling employers to hold ‘protected conversations’ with staff about everything from poor performance to retirement without fear that the discussion could be used as evidence in an employment tribunal.
Cable also confirmed plans, as of next April, to double the length of time to two years that people need to work for their employer before they can make a claim for unfair dismissal. But he denied that such changes would erode workers’ rights, claiming that they would cut “unnecessary bureaucracy” and reduce the number of tribunal cases, which have increased by 40% over the last three years.
“We are not trying to create an environment of ‘hire and fire’ and insecurity – absolutely not. That is not the way we want to proceed. In current conditions, that would not be helpful at all,” Cable told BBC Breakfast.
Instead the Government was keen to create a climate in which “entrepreneurs want to start businesses, expand, take on staff and feel confident that they can do that and, if they run into difficulties with a particular employee, they can have a conversation with them without worrying they are going to be taken to a tribunal”, he said.
Unintended consequences
But Ben Willmott, head of public policy at the Chartered Institute of Personnel and Development, warned that the Government needed to be “extremely wary of unintended consequences that could add complexity for businesses where they crave simplicity”.
While the proposals were “well meant”, they were “likely to actually increase confusion among employers, add to red tape and generate additional legal disputes”. Moreover, by offering organisations “false comfort”, the Government “risks creating a field day for employment lawyers and a nightmare for business”, Willmott added.
By the same token, doubling the unfair dismissal qualification period was a “poor policy call”. “There is no evidence that it will have any significant impact on reducing the number of employment tribunal claims or support the labour market in any way. Both these measures risk making excuses for poor managers, who will cost firms far more in the form of demotivated, unproductive workers than they will in tribunals,” he said.
Howard Hymanson, head of employment law at Harbottle & Lewis, agreed. While he said that, in principle, there was "much to be said" for the introduction of a right for employers to have a full and frank exchange of views with underperforming or badly behaving staff, the problem was that, once the genie was out of the bottle, there was no putting it back.
"In practice, one cannot impose by legislation an effective ‘time-out’ in a relationship which, at its heart, is built on the implied duty of ‘mutual trust and confidence’. If this ‘protected conversation’ actgually finds its way onto the statute books, it will not help employers in many instances to bring about an effective, pain-free exiting of an unwanted employee," he added.
Instead what would emerge was "simply another recipe for disaster". It made more sense simply to leave employers to their own devices to gauge how and when difficult conversations should take place as it was "not an area, which in any sense requires yet more government regulation", Hymanson said.
