Protected Conversations Introduced
Local law firm KBL Solicitors reports that amendments to the Enterprise and Regulatory Reform Bill have been tabled before Parliament which, if enacted, will have an effect on the way businesses deal with problem employees.
Currently, if an employer takes an employee to one side and makes an offer of a ‘pay off’ in return for a quick exit from the business, there is a risk that employees can refer to this conversation as part of an Employment Tribunal claim. An employee may seek to rely on the conversation as evidence that any subsequent redundancy, disciplinary or capability dismissal is unfair.
Although an employer may seek to protect their position by referring to the conversation as ‘off the record’ or ‘without prejudice’, in reality unless there is an existing dispute between the parties, the employee is free to refer to the conversation in the Tribunal.
The amendments to the new Bill seek to introduce the concept of ‘protected conversations’, whereby employees will be banned from making reference to some offers or discussions with employers that take place prior to the termination of their employment.
The suggested amendments have identified that a number of exclusions will apply and ‘protected conversations’ will actually only occur in very limited circumstances.
John Hassells of KBL comments “In principle this is great news for employers. At present many employers are nervous and fearful about having these types of conversations. But the new rules should be treated with some caution as they only prevent the conversation being mentioned in support of an unfair dismissal claim, and even then a tribunal will have a right to know what was said if the employer has acted improperly or if it involves discrimination”.