'Protected conversations' - could you ever be sure?

In announcing the Government's plans to radically reform employment relations, Vince Cable implied that a system allowing employers to have "protected conversations" with their employees was likely to be introduced, albeit that the Government would consult on the detail of this proposal in 2012.

Vince suggested these conversations would allow employers to raise issues such as poor performance or retirement in an "open" way and employers may greet this idea with enthusiasm.  The intention is to enable employers to sit down with their employees and speak frankly to resolve issues without worrying about the discussion being referred to later in evidence. 

The other side of the coin, however, is that it would seem, for example, to give employers the ability to suggest that an employee was past their best and should retire and retain their dignity.  A poor performer could be read the riot act or given the equivalent of a "Code Red", with the employer safe in the knowledge that no such conversation could be referred to in Tribunal.

It also appears that the effect of these "protected conversations" would be to widen the ambit of "without prejudice" discussions.  Currently, a genuine "without prejudice" discussion can only take place when there is an existing dispute between employer and employee which is likely to lead to litigation.

But who decides that a conversation is protected?  And what if an employee believes the content of the conversation was discriminatory?  A dismissed employee is likely to refer to the conversation in their claim to the Tribunal in any event.  They will argue that the conversation should not qualify for protected status either because it was discriminatory or it was clear evidence that their dismissal was pre-judged and therefore unfair. 

Whilst well intentioned, if "protected conversations" are introduced, there is a risk that they could have the adverse effect of increasing the number of preliminary hearings required to determine whether certain evidence is admissible at Tribunal and as a consequence, increase the overall costs of defending claims.

Rather than achieving the desired effect of keeping the lawyers out of it, if this particular proposal goes ahead, it may open up a legal minefield.