Can we just have a chat?

Date published: 28 October 2011

In the fuss that followed from a venture capitalist’s proposal to destroy Unfair Dismissal - a proposal which was instantly dismissed by a government spokesman who said “it is unlikely we would go further on unfair dismissal” (reports the BBC) – a more sensible proposal was drowned out says Tim Gray from Clough & Willis.

Cautious employers are aware of the risk that a meeting with an employee could later be used in a tribunal – and that limits what employers feel they can say to their employees, even in an informal chat. This stems from the implied duty of trust and confidence which the law says exists in a contract of employment.

If an employer starts to tell an employee that he or she is not performing there is a risk that the employee will later assert that the conversation was so troubling that it broke that trust and confidence necessary and amounted to a constructive dismissal, (although in fact very few constructive dismissal cases succeed).

Employers often ask us if they can have a “without prejudice” discussion with an employee and, as the law stands at the moment, the answer is “no”. All conversations, even those which appear most informal (on the shop floor, in the yard, at the drinking fountain) are on the record.

In a speech given this week Nick Clegg indicated that the government would shortly bring forward proposals which will include a law on “protected conversations” that would allow companies to have “frank conversations” with staff without fear of being referred to an employment tribunal, including conversations about retirement with older workers.

If enacted this would be a major step forward in allowing the air to be cleared and prevent a lot of anxiety on the part of employers, without removing rights which employees currently enjoy.

Employment law is complex and in need of reform – but sensible steps such as this are far more to be welcomed than the idle dreams of a venture capitalist.