The Government has recently submitted an amendment to the Enterprise and Regulatory Reform Bill, detailing its proposals for “protected conversations”.

Under these proposals employers will be able to hold protected conversations with employees with a view to terminating their employment under a settlement agreement. This conversation will not be able to be used as evidence if the employee then decided to take the employer to the Employment Tribunal for unfair dismissal.

Protected Conversations may be particularly useful for employers in discussing difficult issues like productivity and retirement without threat of legal action for unfair dismissal from the employee.

Under the Government’s proposals, an Employment Tribunal would not be able to take into account “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”. However this would not extend to claims for discrimination, automatic unfair dismissal (such as whistleblowing) or breach of contract.

However, if something “improper” arises in the discussion, the proposals would allow the Tribunal to take the discussion into account. The definition of what is deemed “improper” is bound to be the basis of much discussion at Tribunal. However until these parameters are drawn, Tribunals will have to hear the protected conversations in order to determine whether they have involved the something that has been done or said by the employer is “improper”.

The reality is that in practice, at least initially, the concept of protected conversations may prove problematic. The benefits of protected conversations in its current form are uncertain and various issues require clarification. They include situations where employees raise discrimination issues during a protected conversation or where an employee’s grievance which leads to a protected conversation, ends with the employee resigning and claiming constructive dismissal. In the latter of these situations a Tribunal would need to determine whether initiating such a discussion would constitute a fundamental breach by the employer of the implied term of trust and confidence.

Many commentators have stated that these proposals create more problems than they solve and that the high levels of uncertainty that accompany these proposals will not prove popular with employers. Some have even commented that because the Government will desperately want to avoid a flood of litigation which will inevitably follow the implementation of the Bill in its current form, additional amendments to the Bill should be expected soon to clarify many of these points.