CONVERSATION PROTECTION FOR WHOM?

RMT helpline 0800 376 3706 :: january 2012 :: RMTnews 23 were contractors working and a large metal meshed temporary fence and gate had been erected. As the member unlocked the padlock and removed the chain, the gate fell from its position and towards him. He instinctively put his arm out to protect himself but the gate fell, knocking him onto the bonnet of his vehicle with the gate on top of him. An investigation revealed that the gate had no hinges or securing base blocks. Lighting was poor, given the early hour and the distance of the gate from the nearest light source. The member suffered a laceration to the hand along with neck and back injuries that continue to cause him problems. A claim was brought against Network Rail, which offered the member £2,700 compensation. Following further negotiations, the claim. Following further negotiations, the claim was settled for over £4,000. COMPENSATION A train conductor member was on duty in the rear cab of his train when he stepped on some loose flooring in the cab, lost his balance and suffered a strain injury as a result. The problem with the floor had been reported some two weeks earlier but was not repaired until after his accident. He brought his claim through the RMT’s Legal Assistance Scheme. The evidence against Northern Rail meant that they had to accept liability for the accident and after some negotiation Mr Ross accepted an offer of settlement. Business secretary Vince Cable’s announcement that the government will be consulting on introducing “protected conversations” into workplaces is the latest move to weaken employee rights in favour of employers. The conversations will allow employers to avoid liability for what they say to staff. The government has already pledged to extend the qualification period for taking an unfair dismissal claim from one to two years and is proposing reducing consultation periods for collective redundancies, weakening protections for workers when their jobs are transferred to different employers and restricting access to employment tribunals by charging fees. Employers’ organisations have convinced ministers that they are being inundated by vexatious claims and that businesses are so terrified of hiring people that it is paralysing the UK economy. They base these claims on anecdote not evidence. The “protected conversations” proposal came after venture capitalist and Tory donor Adrian Beecroft popped up as adviser to David Cameron’s policy guru Steve Hilton with a report recommending that employers be allowed to sack workers at will and without explanation in return for a compensation payment. This would, he claimed, promote economic growth. Although Cable and then deputy PM Nick Clegg appeared to block the plan saying, as the trade unions always have, that making people scared for their jobs will stop them spending, it was not entirely buried. Cameron announced that he wanted to make it “so a boss and an employee feel able to sit down together and have a frank conversation – at either’s request”. This assumes that there is a level playing field between workers and their bosses (or even that the workers have the upper hand). In the recent employee status case of Autoclenz Ltd v Belcher, the Supreme Court explicitly recognised the fundamental inequality in bargaining power between individual employees and employers. The government fails, deliberately or not, to understand that inequality. And so it invites us to infer that managers cannot manage effectively if they can be held to account for what they say to staff, and how they say it. Instead they want the freedom to have difficult conversations without risking liability. Enabling them to do so will, presumably, allow them to manage out the underachievers, the “workshy” and the awkward more easily, and certainly within the two years they will have before they risk unfair dismissal procedures for not following the procedures that would normally protect a worker during any discussion about capability. What if these protected conversations go wider than capability, or misconduct, to redundancy, pay or grievances and disciplinaries? What if they involve discriminatory conversations? Will an employee be allowed to be accompanied by his or her union rep to a protected conversation and what will be allowed to be reported and to whom? On what basis could unfair dismissal proceedings be litigated if details of the protected conversation cannot be disclosed? If protected conversations effectively rip up the rules about discrimination and consultation, they will be a rogues charter for managers looking to bully, cajole and abuse. Responsible employers may not use them to deliberately deny employees their legal rights, but there are plenty of employers who already try to don the cloak of “without prejudice” to try to conceal their guilt. The industrial relations and union rights consequences of protected conversations with no or ineffective safeguards are far reaching. Any number of individual rights might be hobbled, which will certainly achieve the Beecroft vision, but they may also prevent unions being able to refer to why collective bargaining talks broke down so as they had to ballot members for action. The government’s view of good industrial relations is to tip the scales further in favour of employers by watering down and removing employment rights while restricting access to justice. At a time when those in employment in the UK need confidence in their future, driving employment rights down to the level of developing economies will create massive job insecurity and is economically illiterate. There is no evidence that employers are scared of taking on staff because of employment laws. Anecdote should not drive policy. This is a callously calculated attack on working people. CONVERSATION PROTECTION FOR WHOM? Iain Birrell of Thompsons Solicitors responds to the government's plans for "protected conversations at work"