News
Protected Conversations | 18/11/11
Mediation Light? Or Rock climbing without the rope?
Mr Clegg says ” Employers tell us they're afraid to have frank discussions with staff ... for fear of those exchanges being used against them unfairly, should a dispute end up at tribunal."
So the proposal for consultation is that firms would be able to have "protected conversations" with staff - during which statements made could not be used if a dispute arose and ended in a later employment tribunals.
A suggestion welcomed by many employer’s organisations as a way of being able to speed the process of parting from underperforming employees.
You can picture the scene. Manager and employee sitting in a small meeting room with cups of coffee, having an open, honest discussion about what is or isn’t working and how, despite everyone’s best efforts, it isn’t getting any better. Time to move on – and how could the employer best help the employee to do so?
Frankly managers with the skills to have that discussion won’t need them to be protected. They will have followed the existing procedures to the letter and done so in a positive manner, really trying to help the employee attain the performance level of all his colleagues. So that if this doesn’t work the employee will have few reasonable grounds to bring a tribunal claim.
So is this aimed at managers who are not skilled enough to have that conversation without it being protected? Or is it aimed at the really difficult employee who, however positive and helpful the employer is, will at the merest hint of being dismissed, start a resource consuming litigation process?
Surely not the managers (would this suggest they might be underperforming?). What would they say that could, for example, be discriminatory or in any way contrary to the Equality Act and then be unfairly used against them in a tribunal? Who would decide what would or would not constitute an unfair use? The employer, employee or tribunal judge?
So the employee is the target of this proposal? Those employees who are litigious by nature and just itching for a tribunal? In which case, why would they agree to a conversation being protected in the first place?
This proposal has been described as “mediation light” – mediation without the mediator. Which sounds to me like rock climbing without a rope. Bl**dy dangerous for the untrained and unlikely to get you very far.
If this sounds really negative, apologies. In any organisation people deal with people. So give them the skills to have the difficult conversations and you won’t need convoluted new legislation.
We look forward to the consultation.
(For a cogent review of the potential pitfalls of the proposals, you could do a lot worse than http://www.xperthr.co.uk/blogs/employment-tribunal-watch/2011/10/nick-cleggs-protected-conversations-proposal-15-reasons-why-this-wont-work.html)
(For an idea of the skills, you could do worse than http://www.catalystmediation.co.uk/training-courses/)
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Guidance on Mediation from the UK Ministry of Justice | 20/10/11
"The Ministry of Justice is responsible for developing policy on alternative methods of dispute resolution.
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Civil Justice Advisory Group - Mediation in Civil Courts | 19/01/11
The Civil Justice Advisory Group reconvened in early 2010 to consider the proposals of the Scottish Civil Courts Review, led by the Lord Justice Clerk, Lord
Regional mediation pilot scheme launched | 25/01/12
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Resolving Workplace Disputes Government Response | 02/03/12
UK Government response to the 2011 consultation with wide ranging recommendations for the use of mediation and ACAS to resolve disputes before they reach tribunal stage and further proposals to change the ET system itself.
