This document provides guidance on having difficult conversations in employment situations. It discusses preparing for conversations regarding probationary periods, disciplinary issues, and performance management. Key points include controlling the situation and your emotions, asking open-ended questions, actively listening, being consistent in applying sanctions, and maintaining ongoing dialogue rather than storing up problems. Thorough preparation is emphasized, such as knowing policies, evidence, and possible outcomes before meetings.

1. Dealing with difficult
conversations
James Willis
Head of Employment Law

2. Why are we here?
 Me
 You
 The subject matter

3. 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

4. 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!

5. 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

6. 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

7. 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!

8. 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

9. 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

10. 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

11. 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…?

12. 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

13. 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

14. 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

15. 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!

16. 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

17. 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?

18. 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

19. 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

20. 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’?

21. 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?

22. 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

23. 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

24. 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?

25. 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

26. Once more for good luck…
 Preparation, preparation, preparation

27. Questions?

28. James Willis
Head of Employment
stevensdrake solicitors
t: 01293 596931
e: james.willis@stevendrake.com