By Patrick Stewart, Head of Employment.
The government's plans for Protected Conversations in the workplace are beginning to take shape. They are designed to allow an employer to have a frank discussion with an employee, aiming to end the employment on agreed terms without the risk that the employee reacts by resigning and claiming constructive unfair dismissal. The rule will be that a tribunal cannot take such a conversation into account when dealing with a claim.
Note that they only apply in unfair dismissal claims. So, where an employee has been subjected to such a discussion and rejects the offer, if the employee can bring a discrimination claim (say a maternity dismissal) for breach of contract (failure to give notice) reference can be made to the conversation.
There is also an exception where the tribunal believes the employer has acted improperly. Some might say that having such a discussion on any terms is improper conduct on an employer's part, but clearly a fruitful source of litigation.
The discussion can also be taken into account if it has been dealt with in other claims between the employer and employee. Again, used in a mixed unfair dismissal and breach of contract claim.
The worry is that a well intended provision will cause more problems then it solves and cause more disputes than it avoids - remember the Statutory Disciplinary and Grievance Procedures.
For further details email email@example.com