Protection For Whom?
Labour & European Law Review Weekly Issue 245 24 November 2011
The government yesterday announced the “most radical reform to the employment law system for decades”.
In addition to launching consultations on reducing the minimum period for collective redundancy consultations and on the effectiveness of the TUPE Regulations 2006, it confirmed that it will also consult on introducing “protected conversations” early next year.
Writing on the Thompsons Trade Union Law Group website last week (TULG), trade union law experts Iain Birrell and Andrew James said that protected conversations – a boss and employee “sitting down together and having a frank conversation at either’s request”, according to David Cameron - assumes that there is a level playing field between workers and their bosses (or even that workers have the upper hand).
They point out that in the recent employee status case of Autoclenz Ltd v Belcher, the Supreme Court explicitly recognised the fundamental inequality in bargaining power between individual employees and employers. The government, they suggest, is failing to understand that inequality.
But Cameron’s announcement seems to infer that managers cannot manage effectively if they can be held to account for what they say to staff, and how they say it.
Birrell and James question what will happen if these protected conversations go wider than capability or misconduct and extend to redundancy, pay or grievances and disciplinaries and if they involve discriminatory conversations.
“Will unions and their members be forced to observe an operational omertà and on what basis could unfair dismissal proceedings be litigated if details of the protected conversation cannot be disclosed?” the authors ask.
“If protected conversations effectively rip up the rules about discrimination and consultation, they will be a rogues charter for managers looking to bully, cajole and abuse. Responsible employers may not use them to deliberately deny employees their legal rights, but there are plenty of employers who already try to don the cloak of “without prejudice” to try to conceal their guilt.
“How might the law on protected conversations be written to avoid abuses? If, for instance, conversations were protected unless discriminatory, this would inevitably produce a raft of satellite litigation. It would embroil employers in discrimination claims which they would not have faced otherwise and which would hardly produce the outcome that ministers desire”.
The article concludes that while the devil will be in the detail of the consultation, it is clear that the government’s view of good industrial relations is to further tip the scales in favour of employers by watering down and removing employment rights while restricting access to justice.
Responding to Vince Cable’s announcement of the consultations, Victoria Phillips, head of employment rights at Thompsons Solicitors said:
“No fault dismissals, weakened TUPE protection, reduced collective consultation periods, ‘protected conversations’ to allow employers to avoid liability for what they say to staff, severe limitations on access to employment tribunals and yet Vince Cable says he is ‘not re-balancing employment law simply in the direction of employers’.
“At a time when those in employment in the UK need confidence in their future, driving employment rights down to the level of developing economies will create massive job insecurity and is economically illiterate.
“There is no evidence that employers are scared of taking on staff because of employment laws. Anecdote should not drive policy. This is a callously calculated attack on working people.”
Read Protection for Whom?