UK Update: Handling difficult conversations in the workplace: A brief guide

Shortly before Christmas, it was reported the boss of a US company dismissed around 900 of its employees on a single Zoom call.

The reasons given were “the market, efficiency and performances and productivity”. As an employment lawyer, I will admit that my unfair-dismissal-alarm-bells were ringing when I read the story. In the absence of proper consultation, the company’s approach would almost certainly have resulted in employment tribunal claims had the dismissals taken place in the UK.

That said, the report also reminded me of how important it is for employers to get difficult conversations right. The US company’s actions sparked backlash on social media, with commenters describing the move as “cold” and “harsh”. Reducing legal risk is only part of the picture. The way in which difficult conversations are handled can have a significant impact on employee relations; productivity; the way in which an employer is viewed in the marketplace; and, very importantly, what the employee takes away from the conversation.

Most commonly, difficult conversations in the workplace centre on discussions regarding:

• redundancy decisions;
• conduct or performance concerns;
• absences;
• employee complaints (including personality clashes); and
• personal problems.

Given how wide-ranging these topics are, it is impossible to set a ‘one-size-fits-all’ approach for difficult conversations in the workplace. That said, and having worked with a number of clients on this recently, I think that the following principles are helpful to bear in mind when gearing up for a difficult conversation:

• It almost goes without saying, but avoid group settings. Unless you are dealing with collective redundancy consultation, difficult conversations should be held one-to-one (or with an additional attendee to take notes if the conversation forms part of a formal meeting).

• Don’t delay. No one likes having difficult conversations, so it is easy for them slide to the bottom of your to-do list. However, delaying these discussions only makes matters worse and can prejudice formal HR processes further down the line. If you have not discussed performance concerns with your employee on an informal basis, launching into a formal performance management process is likely to prove problematic. Providing regular feedback is key.

• Be direct and specific. It can be tempting to sugar-coat matters or to talk around the issue, but there is no point having the difficult conversation if the person on the receiving end does not understand what the problem is. Get to the point as quickly as possible and be prepared to back it up with specific examples.

• Think about timing. Sometimes the timing of a difficult conversation will be driven by business requirements. Where possible, however, schedule your meeting for a time when the individual has the headspace to absorb what you are telling them. Delivering bad news in the middle of a busy project is unlikely to be productive for either party. Similarly, avoid scheduling these meetings on an employee’s first day back from a lengthy absence. Doing so can lead to a sense of having been ambushed.

• Think about the ‘who’. It sounds simple, but identifying the right person to lead the discussion can have a significant impact on the outcome. It can be tempting for managers to think that responsibility for difficult conversations sits with HR. Usually, however, the best person for the job is someone who knows the employee well and can gauge their reaction. More often than not, that person is the employee’s line manager. Of course, if the issue at hand relates to the employee’s relationship with their line manager, another manager should step in with support from HR.

• Prepare. Difficult conversations can be nerve-wracking. Proper preparation is the key to ensuring that you are in control of the discussion. The following steps are a good starting point:
  • Familiarise yourself with any relevant HR policies. If you are dealing with a performance issue, for example, you should read your employer’s performance management policy before scheduling the meeting.
  • Think about what you want to say and the order in which you want to say it. Many managers find that preparing a script in advance helps to keep them on track during the meeting.
  • Gather any information or documentation to which you intend to refer during the discussion.
  • Difficult conversations should be solutions-based, so think about solutions in advance and the steps that both you and the employee will need to take to achieve that outcome.

• And finally, ask for help. If you have an HR department, lean on them for support and guidance. For higher-risk cases, you may wish to take legal advice before having a difficult conversation with an employee. We regularly prepare draft scripts for clients (particularly when the intention is to hold a ‘protected conversation’ with an employee), so please get in touch if there is anything that we can do to assist.

By Rachel Mckay, Burness Paull LLP, Scotland, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact ukscotland@transatlanticlaw.com

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