Dealing with difficult conversations

James WillisHead of Employment Law

Why are we here? Me

You

The subject matter

What is a ‘difficult conversation’?

It’s a conversation where you have to manage emotions and information in a sensitive way

They can arise in a wide variety of situations

We are concentrating on: the probationary period Disciplinary situations Performance management situations

A bit of recent research (from the CMI) ‘Difficult’ conversations at

work trickier than: Relationship break-ups,

money, sex

Senior Managers 40% panic and tell a lie 43% lose their temper and

shout

Reactions to ‘difficult’ conversations at work Mumble, stutter, trip over

words (49%) Clam up (41%) Let emotions take over (37%) Take things too personally

(53%)

85% have never had any training on how to tackle difficult conversations!

Why have difficult conversations? It’s good for you

These problems don’t always just go away

They have a habit of getting worse

You’ll be a better manager

Your team will be happier and more productive

It’s good for the employee They know where they

stand They have the chance to

change

It’s good for the company All of the above, and… Risks are lower if you

address problems early

A little bit of law Lawyers are worried about legal risk

Contractual risks – think about: The probationary period Extending the probationary period The notice period

‘Statutory’ risks – think about: Unfair dismissal (normally need 2 years’ service) Unlawful discrimination

A little bit more law Fair dismissals require:

a ‘potentially fair reason’ a dismissal decision within the ‘range of reasonable

responses’ a fair process

‘Potentially fair reasons’ Conduct, capability, redundancy, illegality, ‘some other

substantial reason’

In the absence of a good reason… …employees may suspect a ‘bad’ one!

Avoiding (very) difficult conversations This is not about dodging them altogether!

It’s about tackling issues earlier A quiet word Regular dialogue Are you approachable?

Make sure you stay informed

Laying the foundations – take control Control the situation

Timing, location, personnel

Control your emotions Preparation, preparation, preparation

Control the outcomes Think ahead, but don’t prejudge Don’t get bounced into anything

Preparation is the key Be clear about the purpose

of the meeting

Make sure you know: your policies and

procedures all relevant documents

and information

Assertive? Collaborative?

Remain calm and controlled

Use an agenda?

Ask for help, if you need it

Think about your language Open questions (getting them to open up)

How do you think things are going? What happened (next)?

Closed questions (pinning them down) What time was that? Who else was there?

Reflective questions (getting a bit more detail) Why did you do that? Are you telling me that…?

Think about your language (cont’d) Leading questions (best avoided)

“It was you who took the money wasn’t it?”

Multiple questions (also best avoided) “You did it and you acted alone and you knew that what you were

doing was wrong, didn’t you?”

Silence People often want to fill the gap!

Remember to listen

Active listening Think about:

Words Tone of voice Facial expressions Body language

Remember to: Nod Smile (if appropriate) Make eye contact Look interested Ask questions that show

you are listening

A couple of possible scenarios A long-serving employee whose timekeeping has started to

become problematic

An employee is returning from an extended period of sick leave

The probationary period The beginning

Establish your expectations

The middle Monitor and discuss

The end Have a review meeting Confirm, extend, terminate?

This is your big chance!

Disciplinary issues (before going formal) How serious is it?

Use informal conversations

Start slowly and build up

But don’t leave it too late, e.g. When you are sick to the back teeth of them When they have accrued >2 years’ service

Disciplinary issues (going formal) Know your policies and procedures

Who is doing what and by when?

Have the allegations been properly investigated? Are there any loose ends?

Disciplinary issues (going formal) Is the invitation letter right?

Clearly set out the allegations Refer to company rules Supply the evidence

Tell them how serious it is Be clear about what’s at stake

If they are on a warning already? Remind them what this means

Getting the disciplinary meeting right Be prepared

Know the issues, the evidence Consider using an agenda

Introduce everyone / explain how the meeting works Go through the company’s evidence Allow the employee to challenge the evidence Allow the employee to mount his ‘defence’ ‘Retire’ to consider your verdict

After the disciplinary meeting? The outcome letter should

set out: The allegations Your findings of fact Why you have preferred

one side to the other Guilty or innocent? The sanction you are

imposing The right of appeal

Take account of the ‘mental element’ of the

offence Any mitigating

circumstances

Make sure the sanction is consistent: From case to case, person

to person Have you ‘gone through

the gears’?

Some other points to note Don’t issue ‘resign or be sacked’ ultimatums

If they offer to resign, you are entitled to accept

What if they raise a grievance?

Performance management Think about:

The ongoing dialogue The isolated issues The slightly worrying pattern The real problem (can’t/won’t/something else?)

The annual performance review Avoid surprises Be honest Don’t store up problems

Performance management – going formal Preparation (again, it’s important)

Get the invitation letter right

Clearly set out your concern(s) Be specific Provide examples (where appropriate)

Provide all relevant evidence

Performance management – the meeting

Introduction and structure Set the scene

Go through the concerns Remind them of previous conversations etc

Do they agree? Reasons for the underperformance? Their views on the solution?

Performance management – the meeting The outcomes

(Agreed) SMART targets Training and support? Warning (if appropriate) Scheduled review(s)

Maintain the momentum It’s crucial Keep your side of the

bargain Don’t throw all your

hard work away!

It’s a marathon, not a sprint Keep the cycle going Move through the gears

Once more for good luck… Preparation, preparation, preparation

Questions?

James WillisHead of Employmentstevensdrake solicitorst: 01293 596931e: james.willis@stevendrake.com