23 Nov 2011

Employers are left uncertain about how frank they can be

Employers have been left uncertain about how frank they can afford to be when discussing performance issues with their staff, following proposals outlined by Business Secretary, Vince Cable, earlier today (23 November).

In a bid to make it easier for businesses to hire and fire employees and create an environment that is supportive to entrepreneurial businesses, the Government has announced plans to permit employers to have “protected conversations” with staff in order to confront them about under-performance without any risk that their comments could be used against them in a future Employment Tribunal claim.

This will be music to the ears of employers and HR professionals as many have become accustomed to shelving performance issues simply because it is perceived to be too difficult or too risky to say what they really think. There is no doubt that a culture of non-management of workplace performance issues in UK businesses prevails and for this reason, the proposed changes will be viewed by employers as helpful.

Clear guidance needed

Clear guidance will be needed, however, and gung-ho employers should beware. The nature and formality of these “protected conversations” has not yet been defined and is subject to a consultation. Clearly, staff involved in such discussions with their employer will need to be protected from any potential discrimination relating to their age, gender and sexual or religious persuasion. In addition, the mutual duty of dignity and respect that employers and employees are obliged to show to each other is an inherent part of employment contracts and should not be breached. Employers should wait for best practice guidance about how such conversations should be conducted. In the meantime, employers should remember that it is currently quite permissible to have frank and open conversations with non-performing employees – provided their complaints can be backed up by evidence.

Reduced consultation period for redundancies

Other proposals announced by the Business Secretary will be viewed positively by employers. His ‘call for evidence’ about a proposal to reduce the length of time that employers must consult with the workforce about planned major redundancies from 90 to 30 days is indication that there could be scope to amend employment law in this area in a way that could help businesses to implement strategic business decisions more quickly. In addition, he confirmed that plans to extend the qualifying period for unfair dismissal claims from one to two years with effect from next April will be going ahead.

These are far-reaching changes which if implemented could mark a significant change in direction for business management culture. While employers needs must be met, but any changes must also be balanced and fair for employees. Achieving this could provide a welcome boost for enterprise – the only problem being that it is likely to take a year or two to arrive.

Questions?

For further information please contact Paula Whelan on 0121 631 5391 or by email at paula.whelan@shakespeares.co.uk