“I told you so” has always been one of the least attractive things one adult can say to another, but I did and I was right, so there.
Earlier posts on this blog have expressed a degree of scepticism as to whether the Government’s “protected conversations” concept could ever be translated into clear and cogent statutory drafting. Today we see from the wording proposed for this purpose in the Enterprise & Regulatory Reform Bill that we were right – it can’t. As a minimum, it hasn’t so far, though substantial revisions are almost inevitable given the volume of flak which the proposed drafting will attract for both its lack of scope and its almost total incoherence.
The starting point is a statement that in determining an unfair dismissal claim an Employment Tribunal may not take account of “any offer made or discussions held before the termination of the employment in question with a view to it being terminated on terms agreed between the employer and the employee”. OK so far, but an initial review quickly reveals some obvious problems in the drafting:
First, the suggestion is that the protected conversations regime applies only to ordinary unfair dismissal claims. Therefore anything involving allegations of discrimination or automatic unfair dismissal (e.g. whistleblowing) – in other words, just the circumstances most likely to lead an employer to want to have a protected conversation - would fall outside it.
Second, similarly, any act giving rise to more than one claim (for example, a discriminatory dismissal, or a constructive dismissal claim for both unfair dismissal and breach of contract) creates the spectre of the settlement offer being admissible in relation to one part of the proceedings but not the other, which is a patent nonsense.
Third, and most worryingly, the exclusion of without prejudice discussions will apply “only to the extent that the Employment Tribunal considers just” in relation to anything said or done “which in the Tribunal’s opinion was improper or was connected with improper behaviour”. Two obvious problems jump out here – first, what on earth might be “improper” in the eyes of the Employment Tribunal? Second, how can you only partly take account of a settlement offer? Surely it is either in the proceedings or not?
So nul points for protected conversations thus far. We will now have to await next developments in the Bill’s progress, even if we do so with the same faint sense of impending disaster as an England fan at the European Championships.