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Protected conversations a long way from being legal- 16/11/2011
Despite the Government’s intentions to start consultations on so-called ‘protected conversations’, as a means to resolve employment disputes informally, a leading Midlands employment lawyer is warning employers not to be tempted into starting this practice by themselves.
Tracy Worthington, Partner and Head of the Employment Department of Wolverhampton law firm FBC Manby Bowdler LLP, says that a protected conversation would allow an employer and employee to sit down and have frank discussions about performance and ongoing employment, without the employer fearing his words will be used against him a constructive dismissal claim.
“Using protected conversations employers could challenge unproductive staff or advise them to consider retirement without worrying about the concern of comments becoming grounds for a tribunal claim. But this is still a long way from being legal,” warns Mrs Worthington, who is based in FBC Manby Bowdler’s Wolverhampton office.
“At present where either an employer or employee uses unambiguous words of dismissal or resignation, they are deemed to have dismissed or resigned unless special circumstances apply; such as words said in the heat of an argument.”
The Court of Appeal has recently upheld this and maintained that special circumstances cannot provide an opportunity for a simple retraction or withdrawal of termination of contract.
In CF Capital Plc v Willoughby, the employer and Mrs Willoughby were involved in negotiations about a transfer of her status from employment to self-employed work. She asked for more information before making up her mind but before it was received, her manager wrote to confirm her move to self employed status and stated that the termination of her employment contract would become effective from a certain date. When she protested, he tried to retrieve the position and said that he had misunderstood the outcome of the negotiations.
Mrs Worthington says: ”The court found that the essence of the special circumstances exception is that the person using the unambiguous words must be given the chance to “cool off” and say that he did not mean what was said, but before the recipient acts on them, which clearly did not happen in this case.
“It emphasises the care which employers must continue to take in following written procedures when it comes to terminating or changing the terms of employment.”