Managing Difficult Conversations: 5 Steps To HR Nirvana

Regular readers will already have seen our practical guide to managing difficult conversations with employees (below).  Being employment lawyers of course, our methodology is designed to manage both legal and practical risk and to give managers and human resources professionals a framework to help them to feel comfortable undertaking that part of their role and dealing with conflict more generally.  The truth is, however, that some managers are simply scared of having those conversations. We were pondering an addition to our guide when we spotted this Forbes article which provides some more holistic tips on dealing with conflict.  As a result, we commend it to you: https://www.forbes.com/sites/forbescoachescouncil/2017/07/17/14-ways-to-approach-conflict-and-difficult-conversations-at-work/#14110cf3cfd6

‍

Managing Difficult Conversations: 5 Steps to HR Nirvana

The HR Director of a pub and leisure industry client recently asked us to prepare and deliver a course for their pub managers nationwide on managing difficult conversations. They felt that these managers were bright people who worked very hard but often felt as if they neither had the time or the capability to undertake difficult conversations (or indeed any employee relations matter) in a manner which was likely to provide a positive outcome for the company, the manager, or the member of staff. As a result, we developed the “5 step plan”. And while it may not actually lead you to HR Nirvana, it can help you to reduce business risk and create a more harmonious and better performing workforce.

During the roll out of our practical training we realised that we often receive calls for advice from clients, even experienced HR professionals, who had become bogged down in a employee relations issue. We found that, time and time again, we were advising our clients to follow a version of the 5 step plan to help them deal with even the most complex of situations. It was then that we realised the value of our approach to the wider community. That managing difficult conversations was the key to effectively managing employee relations issues

Over the course of this blog series we will explain our simple plan and how it can be used (by everyone from the busy HR professional to retail store managers) to help them deal more effectively with everything from the mundane to the most complex of employee relations situations. We’ll consider how to deal with everything from a ‘simple’ difficult conversation on performance to the immediate termination of a senior manager for a much more serious matter. We’ll also consider how it can be applied in a diverse range of subjects from absence management and whistleblowing to grievance and redundancy. By the end of this series the “5 step plan to managing difficult conversations” should be another card in your HR Toolkit.

‍

Step 1. Setting the Scene

“I have a number of difficult conversations to manage, so what is this 5 step plan all about” I hear you say…

We’ve been advising clients on managing difficult conversations in a variety of scenarios cumulatively for almost 35 years. Over that period of time we’ve come to realise that both operations managers and HR professionals sometimes focus on legal box ticking to the detriment of the practical objectives of the meeting itself. That is exactly why we created the 5 step plan. A simple approach for managing any meeting in which a difficult conversation is in prospect. If done well, the 5 step plan can push all of the employment law buttons while creating a focus on a successful outcome rather than just managing the risk of the meeting itself.

Today we’re going to focus on step 1 of the 5 step plan: the introduction to the difficult conversation itself.

Before we go any further down this line of reasoning, stop for a second. Place yourself in the shoes of the employee who is going to be on the receiving end of the manager who has been tasked with managing difficult conversations (whether that is something they might occasionally have to do, as in the case of a line manager, or something that is their full time job, as in an employee relations specialist). Let’s take a simple scenario to start with and assume that, you have been persistently late for work. In that employees shoes then, you arrive late for work, you are already feeling flustered, and your boss dives straight into giving you a hard time for your lateness. How are you be likely to respond to that accusation?

While not all people will, a good portion of people placed into this situation will very quickly become defensive. Even if the manager’s tone is not aggressive they may have taken you off guard. Legally speaking, the manager in this scenario may appear to have already made a judgement in respect of your lateness. And while they might think that the lateness speaks for itself, the key to avoiding legal sanction is to understand the reason for the lateness before coming to a conclusion on culpability and a decision about what should happen going forward. Because if it turns out that the employee in question is late because, for example, they are taking medication for a serious illness and that medication is causing them some unexpected side effects, then the manager who seeks to manage difficult conversations in this way could quickly end up with the company looking the wrong way down the barrel of a disability claim.

So let’s return to you being in the shoes of that employee. If the manager lets you get into work, to sort yourself out, and to calm down before asking if they could have a quick chat with you, you would immediately be in a more relaxed position than in the previous scenario. If they sat you down and very calmly pointed out that your lateness was becoming a problem for the company and they really wanted to talk it through with you, to understand your perspective, and to consider whether the company was able to provide any support for you, far from being defensive, not only might you realise that this is a great company to work for, but you may even become more engaged in trying to make sure that your manager didn’t have to have any further difficult conversations about lateness with you again. In taking this approach, in addition to managing difficult conversations in a way more likely to create a positive outcome for all, the manager is also much more likely to have met the Employment Tribunal’s expectations of fairness as set out in the ACAS code.

As an aside of course, if you place yourself back in your own shoes as the manager who’s job it is to handle difficult conversations, you should try to be aware of your own mood going into the meeting. If you are feeling uptight as you walk in, perhaps because you have had to just deal with the fallout of the individual being late, that person is more likely to react defensively to your mood: if you are not in the best frame of mind to achieve the optimal conclusion to the meeting, then you probably won’t achieve such a conclusion. In these circumstances, it’s usually best to let the red mist settle before you take the bull by the horns.

To reiterate then, step 1 of the 5 step plan for managing difficult conversations is to set the scene in a manner which is conducive to achieving the end goal which you have in mind. Unless the end goal is to be on the losing end of an Employment Tribunal claim, introducing the discussion to the employee in a fair, balanced and reasonable manner will generally be the most effective way to do that.

‍

Step 2. What is the Problem?

Last week in our blog series on managing difficult conversations with your employees we introduced our 5 step plan: a simple approach for managing difficult conversations with employees. Successful implementation of this employee relations methodology can ensure employment law buttons are pushed while creating a focus on a successful outcome (rather than just managing the risk of the meeting itself).

We explained previously why the introduction to the meeting and setting the scene is an important step. Giving a good overview of the reason for the meeting and your expectations of it can ensure that you are set up for a successful outcome for the reasons we explained here: www.heminsleylaw.com/managing-difficult-conversations-introduction/ This week provides insight into step 2 of the plan. To keep things simple we’ve called this step “What is the Problem?”

Now you’ll recall that right at the outset of this blog series we explained how the five step plan can be used in all sorts of employee relations scenarios. We’ll explain in a moment how this might apply in other scenarios, but let’s maintain for a second that that matter in issue on this occasion is the lateness of an individual employee. In the introduction to this type of meeting you’ll have said, in a calm collected manner, that you want to discuss the individual’s lateness and understand their reasons before moving on whether you can provide any support to help them to succeed in the role. In this step you are going to provide more detail to the individual on what the problem is.

Quite apart from the natural justice of explaining to an individual the issue they are accused of, place yourself in their shoes for a moment. If your boss accuses you of something and you don’t really understand what they are talking about or, indeed, what the impact of your behaviour might be, you are much less likely to change it in a positive way. As the manager or employee relations specialist dealing with the matter, the key to this phase is not to personalise the issue but to provide the employee with a good understanding of the problem from the company’s perspective. Their are three actions for you to achieve in this:

1. to explain to them in a calm and clear way the behaviour that you want to focus on (i.e., the lateness)
2. to provide them with specific examples of the problem, referring to dates or, if available, documented evidence
3. to explain in an entirely objective way the impact that the behaviour is having on the business.

Possibly the most important element of this is to talk about the behaviour rather than the employee and explain the impact that behaviour is having on the business and/or the team. In simple terms, saying ‘your laziness meant we couldn’t open this morning’ not only provides no real understanding of the problem from the company’s perspective but will immediately put the individual on the defensive. As a result, it is unlikely to reduce the chance of it happening again. By contrast, saying ‘the fact that you were late this morning meant that our pub couldn’t open in time for breakfast. Not only does that mean we lost business today but if, as a result, our customers found another place to go for breakfast, it could mean a significant ongoing loss of business and, potentially, job losses amongst our morning staff’ is a much more effective device. Maintaining the focus on the behaviour and the impact of the behaviour makes it much less likely that the employee will become defensive and, therefore, that the discussions can be kept focussed on a positive outcome for both the employee and the company.

As previously described, this methodology for managing difficult conversations can be used in respect of all sorts of difficult employee relations scenarios. While this example relates to an informal discussion on lateness, the principle also applies in the context of a disciplinary hearing. Just as step one, the importance of a clear and concise introduction, remains the same across different types of employee relations meetings, so does the need to explain the problem (or, in the context of a disciplinary hearing, the allegation) in an objective way, focussing on the behaviour and providing examples/evidence to support the allegation.

Similarly, in the context of a grievance hearing (and whether the person you are speaking to is the employee raising the grievance, the one accused of the behaviour, or an innocent witness) having introduced the meeting you need to explain your understanding of the problem (in greater or less detail depending on who you are talking to) before moving onto the next phase of the 5 step plan.
While this approach may take a little practice, the focus on objectivising the issue provides a stable base on which to build, whether the outcome the company wants is an improvement in the performance of an individual employee, a more open statement of evidence from a witness, or the cleanest possible exit in respect of a ‘problem’ employee. In addition, as previously, it ticks many of the boxes an employment tribunal will be looking at if your difficult conversation should ever proceed to a litigious scenario.

‍

Step 3. What Do They Say?

Today we explain the third phase of our #5stepplan. We consider how there are always two sides to a story and how you might manage that in the context of managing difficult conversations.

You’ll recall that, back in December, we introduced the #5stepplan: our methodology for managing all sorts of difficult conversations in an employee relations context. Our methodology not only complies with best practice and reduces the risk of a successful employment tribunal claim against you, but is a simple methodology to both remember and implement once you have the basics down.

Careful readers of our series may not have found anything very surprising in any of the above blogs. In the words of one wise friend, “it isn’t rocket surgery” [sic]. The real difference in the #5stepplan, however, is this: if as an employee relations practitioner or manager you can adopt this methodology, not only will you find that your meeting preparation becomes more efficient, but your questioning will become more incisive and the outcome is more likely to be successful. The side effect of this is that you are far more likely to have met the requirements of the Employment Tribunal in almost any employee relations scenario you might envisage should the matter escalate to litigation.

Today we consider the third phase of managing the difficult conversation in question. And if the first phase of our methodology was to introduce the meeting and the second was to explain the problem, the third phase is to give the employee an opportunity to have their say.

It’s long been clear, both from the ACAS guidelines on discipline & grievance and the approach taken by the Employment Tribunal, that whether an individual is being given a hard message on their performance, is facing a disciplinary allegation against them, or has raised a grievance against a colleague, they should be given the opportunity to explain their side of the story without being harangued. Step 3 of our 5 step plan on managing difficult conversations requires exactly that. But giving them their opportunity to explain their side of the story without unduly pressuring them does not mean that you cannot ask them questions or even put their evidence under pressure. The key to this is split this phase into two parts. Let’s call the first part the ‘open explanation’ section, and the second part ‘managed exploration’.

Let’s take a look at the first part of phase 3 in the context of some typical scenarios in which you might be managing a difficult employee relations type conversation. In the early part of this phase you will quite simply use an open question to ask them to explain their side of the story:

• If it’s a performance meeting, for example, having explained the problem and the impact on the business you might say something like “can you explain your perspective on the issue” or simply “what do you say/think” before moving on to the managed exploration;
• If it’s a disciplinary hearing, having explained the allegations (which should have already been set out in the investigation report and hearing invite) in more detail you might say “I’d like to hear your side of the story”;
• If it’s a grievance hearing, this section will of course be a very significant part of the hearing as you will want to understand the allegations being made in considerable detail in order that you can properly investigate.

Having given the individual the opportunity to have their say using open questions and noting what they say, once they have said their piece, you can move on to the ‘managed exploration’ section of this phase. The managed exploration section is where you can, by means of careful questioning, ensure first that you understand the evidence they have provided during their ‘open explanation’ and secondly begin to challenge their evidence.

A ‘funnelling’ question technique can be a very useful methodology to support you in testing the evidence they provide, moving from open questions to gentle probing of what they have told you, and then on to closed questions in which you put evidence already gathered to the individual and give them the opportunity to respond. While we intend to cover questioning techniques in a separate blog, in the meantime, you can find a very useful primer on the subject here: https://www.youtube.com/watch?v=ImfU12epYcI&feature=youtu.be

As you begin to ask more probing questions, and even challenge the evidence they have given more robustly, the key to ensuring that your approach remains reasonable in the eyes of an Employment Tribunal is fairness. Put simply, if you shout at them, not only will they will close down and become defensive, an employment tribunal would very likely conclude your approach was unfair. In addition, their response to you taking this approach may well be that they themselves become aggressive and shout back. None of that will de-risk the situation from the company’s perspective. It can be much more powerful to explain that you are confused as to how their (oral) evidence conflicts with the documentary evidence or, indeed, the evidence of the other half dozen witnesses and ask them again to explain how that can be. Bear in mind that you don’t have to get them to accept your side of the story. You just need to understand their side of the story so that you can take a reasonable decision.

In summary then, the third phase of our #5stepplan on managing difficult conversations is simply to give the individual a chance to explain their side of the story. This is not only a fundamental requirement in the eyes of an Employment Tribunal but an essential in any attempt to engage the individual in a constructive ‘difficult conversation’. It’s important not only to give them that opportunity but to then go on to test their response(so that if your own evidence is put to the test you can say that you simply wanted to understand the conflicts in the evidence so that you could make a fair decision). With a little practise this methodology, along with good questioning technique, can become a very powerful tool in the armoury of line managers and HR professionals.

‍

Step 4. Set the Employees Expectations

The fourth phase of our #5stepplan on managing difficult conversations concerns setting employee expectations. You’ll recall from our introductory blog that our methodology for managing difficult conversations applies not just to informal discussions but to all sorts of conversations, formal and informal, that be considered to fall under the employee relations banner. This includes performance discussions, as well as disciplinary matters and even grievances. In simple terms, whatever the form of the difficult conversation in question you are going to have to set the employee’s expectations on what you expect to happen next:

• If it’s a conduct issue which hasn’t yet reached a formal stage you can simply explain your expectations as to their conduct going forward and tell them what will happen if they fail to meet your expectations.
• If it’s a disciplinary hearing you might tell them that you need time to consider the evidence or even undertake further investigations before you can reach a finale decision
• If it’s a grievance hearing you might explain that you plan to do further investigations and give them a timeline in which you expect to revert to them
• If it’s a redundancy process you might tell them when the next consultation meeting might be, what you expect to cover at that meeting and what will happen in the meantime.

The key in all of this is to be clear in your requirements.  At the end of the day, if you are the manager, you are expected to manage and managing difficult conversations is a fundamental part of that.

‍

Step 5. Write It Down!

The final step of our methodology for managing difficult conversations is one you will hear all the time from both HR and employment lawyers because it is what can win or lose a case for you.  All that great stuff you have done above in steps one to step four aren’t worth the paper they are written on if you don’t WRITE IT DOWN.

Fundamentally employment tribunals work on the basis of evidence.  And while they are often swayed by what I’ve long called the ‘sympathy vote,’ having contemporaneous written evidence that you have carried out the steps above makes your side of the story very difficult to challenge indeed.  It also ensures you are under far less pressure in cross examination because you always have the evidence of you effectively managing difficult conversations that you created at the time to rely on.

‍

Summary

As noted when we set out, our  5 Step Plan to managing difficult conversations provides a simple and logical framework for managing employee relations discussions of all types, from absence management meetings to grievance hearings and redundancy consultation meetings to raising informal issues with your employees.  If undertaken in a calm and logical fashion they can go a very long way to reducing the risk in all sorts of scenarios dealt with by line managers and human resources professionals. Of course our methodology is designed to reduce both legal and practical risk for companies and organisations.