UK: Oops, I Shouldn't Have Said That! When Can And Can't Managers Have Frank Conversations At Work?

Last Updated: 6 March 2012
Article by Andrew Yule

The Government would have us believe that employers live in constant fear that comments made in the course of frank discussions at work may become the hook for future litigation.

The Government's proposed solution is to introduce the 'protected conversation' – a forum in which employers may 'raise workplace issues in an open way, free from the worry it will be used as evidence in ...Tribunal'. However, while we await the Government's consultation document and details of their proposals, it is worth reviewing whether the current position is really as much of a minefield as the Government suggests.

Can an open conversation be frank?

In many ways, the existing law and current best practise already encourage employers to be frank with employees. For example:

  • performance management is best dealt with by raising concerns at an early stage, providing honest feedback, giving clarity in relation to areas for improvement, time in which employees can address concerns and transparency as to the possible repercussions of failure; and
  • conduct issues, while requiring an impartial investigation before any fair outcome is reached, also call for a frank assessment of the potential sanctions for the employee at an early stage. Indeed, a dismissal will almost certainly be unfair if the employer has not stated in advance that dismissal is one of the potential sanctions.

So, the main risk from the employer's point of view comes not so much from the frankness of the information provided to the employee about the concerns they have and the potential consequences – rather, it comes from using language that could be interpreted as having pre-determined the outcome of an investigation, a performance improvement process, a misconduct hearing or indeed a redundancy consultation.

This is why choice of language is so important. For example, the following implies a pre-determination of the allegation and therefore undermines the prospect of a fair decision: 'Your unauthorised absence from work amounts to misconduct so we have decided to commence disciplinary proceedings. If you have no acceptable explanation for your absence, this will result in disciplinary sanctions, which may include dismissal'. This is very different from: 'Unauthorised absence from work amounts to misconduct and we have decided to commence disciplinary proceedings to determine whether your absence was unauthorised. If we determine that it was and if you have no acceptable explanation for this, it is likely to amount to a finding of misconduct which may result in disciplinary sanctions, including dismissal'.

The distinction between the two is not that one is any less frank than the other – only that one reveals a very different mindset from the other.

Should a frank conversation be 'without prejudice'?

Occasionally, a business will have formed a clear view that an employee's days are numbered. There may also be reasons why there is no desire to engage in (for example) a lengthy performance improvement process, when the business knows this will be a sham. But the risks summarised above make it very difficult for the business to be open and frank about their desired outcome. Therefore an employer will often seek to discuss the situation with the employee on a 'without prejudice' basis.

However, the 'without prejudice' label is often incorrectly applied.

The 'without prejudice' rule is based on a combination of public policy and agreement (allowing parties to discuss settlement freely). It prevent statements (whether oral or in writing), made in a genuine attempt to settle an existing dispute, from being put as evidence before the court or Tribunal.

However, it will generally not apply either where there is no dispute or where there is no genuine attempt at settlement. This is particularly so if there is no agreement between the parties that their conversation was intended to be 'without prejudice'.

For example, in a classic 'performance improvement process', it will be unusual for there to be an existing dispute between the parties, especially early on in the process. Further, even if an employer says that they are making a proposal on a 'without prejudice' basis, an employee may not have agreed to apply the label and/or may not understand the significance. This could render the label meaningless, so employers must use the label cautiously.

Even where there is a dispute and a genuine attempt at settlement, there are exceptions to the rule. Most notably, the 'without prejudice' label may not be used as a cloak for perjury, blackmail or 'unambiguous impropriety'. As far back as 1988, in a case called Rush v Tompkins, Lord Griffiths stated that "even in situations to which the without prejudice rule undoubtedly applies, the veil imposed by public policy may have to be pulled aside, even so as to disclose admissions, in cases where the protection afforded by the rule has been unequivocally abused.'

These cases will be rare but, particularly where there is any underlying allegation of discrimination or whistle-blowing, employers should tread very carefully when seeking to rely on without prejudice protection.

Are protected conversations the answer?

We are yet to see the details of the proposals but the idea of a 'protected conversation' will appeal to employers who feel over-burdened by protocol and where they feel that a little more frankness may be beneficial for both parties.

But there are big questions about how things will work in practice. For example, will it be a pre-condition that both parties must agree to hold a protected conversation? Will the rule be open to abuse by unscrupulous employers? Where will the line fall between those aspects of a conversation that are legitimately protected and those that may be considered an abuse? Or, will protected conversations give businesses a false sense of security, resulting in them revealing too much?

In short, there seems scope for unintended and complex satellite litigation unless the rules are very carefully and unambiguously drawn.

Practical tips

While we still have to operate within the current landscape, a few rules will help to reduce the risk of finding your words thrown back at you in the Employment Tribunal:

  1. avoid language that suggests that issues have been pre-determined;
  2. plan and keep notes of meetings, so you have your own records of what was said;
  3. if you want to talk about settlement, ask yourself whether there really is a dispute that you are trying to settle. If there is not, then consider how best to raise the subject – it may be perfectly acceptable to openly acknowledge that you are willing to discuss the possibility of an agreed exit, but on an exploratory basis. Keep your options open; and
  4. if in any doubt, seek advice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions