I have just had this article drawn to my attention on twitter. It will be the front page of tomorrow’s Telegraph.
At best, this is a further example of headlines being sought over substance. At worst, if it is a serious proposal that will be considered by government, it will be a regressive step taking the country back decades.
The reasoning is not entirely clear. At one level, it is easy to follow an argument that dismissal of a genuinely under-performing employee should be straightforward. In my experience, the law currently supports employers who wish to take action when faced with such underperformance, though I do recognise that an employer faced with counter allegations of bullying faces a more difficult task with an intransigent employee that wont recognise their own shortcomings. Importantly, the issue is not that the law as drafted is wrong.
However, the article does not appear to restrict the consideration of the subject. If the report is suggesting and the government is giving consideration to the wholesale withdrawal of the right not to be unfairly dismissed, then my view is that it would simply be a bridge too far for any government to achieve. The end result will be headlines for the government, but an issue quietly dropped in the months to come. The concept of unfair dismissal has become engrained in our national psyche. The social benefits of having the law in place , encouraging good industrial practice, a pleasant working environment and decent management outweigh any regulatory burden.
This comes on the back of a previous article suggesting that employers and employees should be able to have ‘protected conversations’ which could not subsequently be relied upon in the Employment Tribunal. The suggestion does not appear to be framed in the terms of the ‘without prejudice’ rule, though there are some similarities. However, the concept of ‘protected conversations’ does throw up the same difficulties as the without prejudice rule. In particular:
- To what extent can professional representatives continue to act for a party and put forward an evidential contention which contradicts the substance of such a conversation? I would suspect that the issue of professional embarrassment is particularly live in these circumstances?
- The limits of the without prejudice rule are blurred in discrimination cases. If the concept of ‘protected conversations’ were to be formalised and therefore relied upon to a greater extent by employers, it would either lead to employees alleging discrimination in order to bring such conversations into evidence, or if this were to be prohibited, an argument that such a prohibition was contrary to EU Law.
- Establishing what was protected and what was not would most likely need to be the subject of a Pre Hearing Review.
UPDATE: The BBC is reporting that a change in the law is unlikely, but you will note that the statistic regarding withdrawn claims is being wheeled out again. 80% of claims includes all claims which have settled and withdrawn claims includes those settled via a compromise agreement.