“Protected conversations” are one of the key employment law proposals that the Government is seeking to introduce this summer, along with the introduction of fees to the Employment Tribunal, the reform of the Employment Tribunal procedure, the re-naming of compromise agreements to settlement agreements, and compulsory pre-litigation conciliation. We’ll take a look at protected conversations in this post and in doing so will focus on:
- What are “protected conversations”?
- How will this change the current law on such communications?
- How will the protected conversation proposals affect compromise agreements?
What are “protected conversations”?
The Government announced in 2011 that it was considering legislating to introduce “protected conversations” into employment law. The purpose of such conversations, said David Cameron, was to allow an employee and an employer to have a “frank conversation” at either’s request about the employee’s performance in the workplace (or anything else that could relate to the potential dismissal of the employee, such as misconduct). Such conversations, the proposals suggest, would not be admissible as evidence in the civil courts or in the Employment Tribunal.
However, the current idea is to introduce protected conversations only to cover potential proceedings which relate to unfair dismissal in the Employment Tribunal. These proposals do not, therefore, cover proceedings which relate to discrimination (on the grounds of age, sex, race, disability etc.) or harassment at work – an issue which employment law solicitors have indicated may lead to confusion and the potential for “protected conversations” to be circumvented.
How will this change the current law on such communications?
Communications between two parties which are attempting to settle existing proceedings are currently inadmissible as evidence in the Employment Tribunal or the civil courts – these are known as “without prejudice” communications. The nuance behind (and presumably the purpose for) “protected conversations” as opposed to “without prejudice” communications is probably the fact that it may sometimes be difficult to draw a dividing line between the point at which proceedings exist and when they are not (which has and will be litigated further in the courts after the protected conversation proposals come into force).
How will the protected conversation proposals affect compromise agreements?
The current proposals – as above – seek to extend the “without prejudice” rule to cover situations where there is no existing dispute between the parties (although, as above, there is likely to be significant disputes as to whether and when the dispute existed). This seeks to allow both parties to settle the claim – through, for example, a compromise agreement – and therefore avoid the potential for litigation in the Employment Tribunal. It is hoped that by allowing the parties to engage in “frank” conversations regarding the employee’s future employment that it will encourage such settlement. This should – the Government hopes – increase the use of compromise agreements between employers and employees. However, what the proposals will actually achieve (apart from changing the name of a “compromise agreement” to “settlement agreement”) remains to be seen – only time will tell in the circumstances.
London Compromise Agreement Solicitors are compromise agreement solicitors based in London
