Can we have a word?

The coalition government is to consult on introducing “protected conversations” into the workplace.

In November, prime minister David Cameron argued that regulation puts organisations off from hiring people. He said that there would only be more new vacancies if employers were able to dismiss people more easily.

Cameron’s current idea is that employers and employees should be able to speak with each other about employment issues without fear of that conversation being used against them in a tribunal.

However, being able to prevent certain workplace conversations from being introduced into evidence before a tribunal, may simply encourage frustrated managers to use such meetings as opportunities for aggressive and intimidating exchanges with employees to whom they’ve taken a dislike.

In practice, there is already nothing to stop employers and employees from having such a conversation. In order to keep the contents private from a tribunal, the parties need simply agree that the conversation is “without prejudice”. Provided the conversation is genuinely aimed at avoiding litigation, the conversation cannot be brought to the tribunal’s attention until the remedies stage, unless it is evidence of discrimination. In other words, it may only be relevant to a damages award.

It is unclear from Cameron’s proposal whether employers will be able to unilaterally force employees to agree to have a protected conversation — that would be a new departure.