Underperforming staff?  – could you use a Protected Conversation?    banner


Underperforming staff? – could you use a Protected Conversation?  

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Underperforming staff? – could you use a Protected Conversation?  


We recently hosted the latest in our series of seminars aimed at employers and small businesses called “Navigating the Employment Minefield”. For many businesses employing staff seems like, at best, a daunting task and, at worst, something that might become highly dangerous. We wanted to provide a brief, practical session on how to handle difficult issues when they arise.


From the comments we get from employers, one of the most common issues is how to deal with staff who are underperforming yet have not actually done anything wrong or have not breached any particular rules. I have lost count of the number of employers who have said to me they simply want to be able to run their business and are nervous about getting bogged down in lengthy and difficult capability procedures. This is a view with which I have some sympathy because it can take several weeks, if not months, to pursue a full capability process, which involves setting achievable and realistic targets to the employee and giving them time to attempt to meet those targets, then reviewing and giving warnings if their performance is not improving. It can probably take at least three months to follow a capability process from beginning to end. That not only involves a great deal of management time but also a good deal of stress and anxiety for the employee, not to mention the risk of ill-feeling.


One potential way of short circuiting that process is to have a “protected conversation” under Section 111A of the Employment Rights Act 1996. This allows the employer to approach the employee and ask to speak to them without prejudice and then to have a frank discussion about the employee’s future. The employer can put a proposal to the employee to terminate their employment on certain terms. That would normally include payment of notice and, possibly, an agreed reference. Provided that the employer does not behave improperly in making the offer (perhaps by giving a very short deadline for confirming acceptance or by saying that if they refuse to accept the package they will be dismissed anyway) and does not make their decision on the basis of discriminatory grounds then that conversation cannot be given in evidence to an Employment Tribunal if the employee subsequently decides to bring a claim for unfair dismissal.


The benefit of a protected conversation is just that. The conversation is protected from repetition at an Employment Tribunal but only in unfair dismissal cases. It also allows the employer to approach an employee where there is no existing dispute. And that is the major innovation with protected conversations. Before they were introduced it was only possible to have the protection of “without prejudice” if there was a live dispute between the parties and that had to be more than a grievance.


However, there is scope for getting these conversations wrong and care does need to be used because they do not protect in all situations. I hope that our discussion at Mill Green showed how they could be used but if you were not there or want further information please do get in contact and we shall be happy to give you more guidance.

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