Yesterday was a day for meddling with employment law. As well as Adrian Beecroft’s proposal to scrap unfair dismissal (see yesterday’s post) Nick Clegg suggested that employers should have the right to off-the-record conversations with employees which could not be repeated in court.
When I first heard this suggestion I thought it was quite a good idea. I know of so many situations in which managers would have liked to have had a ‘cards on the table’ conversation with an employee but did not do so for fear of having their words thrown back at them in a tribunal hearing. Usually, these are cases where someone has inherited a team member who has not been properly managed in the past and who is conspicuously failing to deliver. Often, the person’s behaviour and style of working is damaging the rest of the team. The manager knows that, even with all the development, coaching and performance management in the world, this person is not going to meet the standards he requires. What he wants to do, therefore, is say, “Look, do you really want to go through this painful performance management process when we both know what the outcome will be? How much do you want to call it a day?”
I’ve known a number of managers (and I’ve been there myself) who have found themselves in this situation where they want to pay the employee off, they suspect the employee is waiting to be offered a package yet they still have to go through the motions for fear of being deemed to have sacked someone if they suggest a payoff. In fact, I know of a couple of people at the moment in just such a situation, for whom the introduction of ‘protected conversations’ would be like a gift from heaven.
But then I thought it through. As with all these suggestions, something that works well in one set of circumstances could be misused in others. As an employee, would I be prepared to agree to a protected conversation if I didn’t know what my boss was going to say?
What if, as soon as I’ve signed on the dotted line saying the conversation is protected, my boss says, “Right, Rick, if you don’t take this money now and f**k off, we are going to make your life hell. You’ll either leave here sacked for poor performance or with a nervous breakdown. Either way, you’ll get a shit reference and I’ll make sure you never work again.”
At this point, I would wish I hadn’t agreed to the protected conversation. I’d want to repeat all that at my tribunal.
I can’t, therefore, see how any of this would work in practice. Would employees agree to protected conversations? Alternatively, employers might be able to unilaterally declare their conversations protected. If so, employees would never be able to repeat many of their employers’ browbeating threats in court, effectively weakening the legal protection from unfair dismissal and unfair discrimination.
No, like the extension of the unfair dismissal qualifying period, protected conversations are another of those sops to frustrated managers which might look like a good idea but which won’t really change much. They might help some managers in some situations but they will do little to improve the performance of most organisations.
And that’s the big lie about all this stuff. Tinkering with employment law in this way will not make the economy grow any faster. At the risk of repeating myself ad nauseam, this country is not in the doldrums because of regulation. Other countries with a lot more of it are doing better than we are.
If any of the advocates of these changes in employment law, the CBI, the IoD or the Chambers of Commerce, for example, can come up with any evidence to show that employment law (or any other regulation for that matter) is a significant barrier to Britain’s economic growth, I’d love to see it.
Regulation can be frustrating. No-one is arguing with that. But some of it is necessary and one person’s irritating red-tape can be another person’s invaluable protection. Those who would scrap employment laws want to do so simply because they don’t like them. The economic arguments they use as cover are entirely spurious.