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