14. WHAT THE FUTURE MIGHT HOLD

“Protected conversations” — a bully’s charter

Many reps will already sense, not least from the attacks on facility time, that their representative role in the workplace is viewed with barely concealed hostility by the coalition government. In parallel with the assault on individual employment rights, the government would like to undermine established formal processes for resolving individual workplace disputes.

One of the biggest threats on the horizon to the role of the individual rep, if it comes about, is the “protected conversation” concept. The idea behind this initiative, put forward as an amendment to the Employment Rights Act 1996, is that a line manager should be free to initiate “off-the-record” discussions about individual performance, including discussions as to whether the employment should be terminated on “agreed” terms, short-circuiting the formal procedures described in this booklet that are designed to give employees time and structure in which to improve their performance against defined goals.

Under the proposals, the employee would be prohibited from referring to the “protected” conversation in any claim for unfair dismissal, unless the employer engaged in “improper” behaviour (as yet undefined). The proposal is no longer put forward for jurisdictions such as discrimination or whistleblowing, or for any other “automatically unfair” dismissal situations.

This idea, if implemented, will have fundamental implications for the formal protection mechanisms described in this booklet. Except in workplaces where unions are recognised and will be able to use their collective bargaining power to insist on the use of proper formal procedures to manage issues such as performance, sickness, conduct and attendance, it is likely that informality will quickly take hold as the preferred management option.

The “protected conversation” relies on the fiction that the employment relationship is equal, whereas, as the Supreme Court acknowledged in its landmark ruling Autoclenz v Belcher (2011), the opposite is the case. In an unequal relationship, informal mechanisms will favour the powerful party. The whole purpose of the organisational procedures summarised in this booklet is to counter-balance this inequality by trying to ensure managers act fairly, transparently and consistently, setting standards and keeping managers accountable for their behaviour. They also provide open spaces and agreed rules for the resolution of conflict, instead of pretending the employment relationship is conflict free.

It is not at all clear what role (if any) the government envisages for workplace reps in this framework, or what protection would be available to workers who do not have access to a rep.

Under the proposed new regime, if implemented, vulnerable workers, including workers who have not been adequately trained or who are absent through ill health, will be at risk of employers launching without warning into premature and inappropriate discussions about dismissal, with no protection. It is difficult to imagine a proposal less likely to result in a productive workforce and effective employment relations.