One of the Government's most intriguing ideas for reforming employment law is to allow employers to have 'protected conversations' with staff. This would mean they are able to address issues such as poor performance or retirement with an employee frankly, without risk of their comments being used against them at an employment tribunal. While superficially attractive, this presupposes that managers shy away from such exchanges because of legal concerns. Maybe they just stay within their comfort zone and avoid awkward discussions. There are a host of potential problems with the plan, such as how it would dovetail with the existing scope for employers to initiate 'without prejudice' negotiations. There are also concerns it might generate undesirable satellite litigation over whether or not a conversation was protected. Finally, it is accepted by ministers that no form of discrimination could be allowed in this context. Where would that leave a 'frank' discussion about retirement plans, which is likely to be directly triggered by the individual's age? Time will tell whether the Government can overcome these obstacles and table a practical and workable proposal.
Michael Burd and James Davies, Lewis Silkin LLP solicitors, email: firstname.lastname@example.org.