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The abolition of unfair dismissal
We learnt last week that Adrian Beecroft, in his report apparently commissioned personally by the Prime Minister, has suggested that one way of helping businesses would be to abandon the ability of employees bringing unfair dismissal claims altogether.
This is undoubtedly a radical, but, I believe, misguided proposal. Why so?
But amongst all the heat generated last week over this area of the law, there is one proposal that has come to prominence, which I do think merits careful attention at the current time. Because of the state of the law at the moment, employers are understandably worried about having early “without prejudice” meetings with their employees at the start of a process that may lead to a termination of one sort or another. This is because they may be vulnerable if they cannot subsequently prove to a court that the “discussion” followed the raising of a “dispute”, and that as a result anything they say during the course of a “without prejudice” discussion may come back to haunt them in the event of an employee instituting proceedings before the Employment Tribunal. (It stems from the case of BNP v Mezzotero, where the employee raised a grievance when she returned from maternity leave, asserting that she was prevented from having her old job back. She was thereupon immediately ushered into a “without prejudice” meeting and was offered a “package” which she ultimately rejected. It was held subsequently, that evidence of that meeting was not protected by the “without prejudice” rule, as there was at that time no actual “dispute” to compromise.)
One good way of dealing with this very real practical problem would be to provide for “protected conversations”, whereby an employer may be in a position to talk to its employee and head off claims at an early stage, albeit by paying to buy out rights the employee might otherwise have. That could very much be a “win win” situation for employees as well.
Interestingly, the Government seems to have shown some real interest in this idea – hence its inclusion in the speech by the Deputy Prime Minister, Nick Clegg, last Wednesday.
Expect to see this becoming much more of a focus in the weeks and months ahead…
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