For employers, finding the best strategies and solutions to manage employee relations issues and minimise the risk of legal claims is key.
A tool that we consider to be particularly effective in this regard is the use of “good conversations” between management and/or HR, and employees.
In this article we consider what a good employment conversation looks like, what the benefits are of having such conversations and practical tips you can use.
What is a “good conversation”?
A good employment conversation involves management and/or HR speaking openly and honestly with an employee in respect of the issue that has arisen, whether that is performance concerns, intermittent absences, concerns about the employee’s capability for the role or repeated minor misconduct.
If opportunities for good conversations are neglected, for example preferring to communicate through more formal channels such as email, the chance to resolve matters before it escalates is often missed, or the path to the desired outcome becomes much harder to navigate as positions become entrenched.
By speaking with an employee face to face at an early stage and being clear about the issue at hand, it allows an opportunity for an open dialogue to take place and to set standards and expectations, while also giving the employee room to provide their thoughts and responses to the matters raised.
This approach sends the message that the employer is willing to put in the time and the effort to manage the relevant problems in a supportive and constructive manner.
Employers should not underestimate the power of employee facetime. By being in a room together, you can more easily pick up any misunderstandings and resolve them quickly, and better control the tone and intention of your message in a way that is much harder to achieve over email or other written correspondence.
It also helps to cut through the noise and “point-scoring” that can sometimes take place when the issue is being managed at arm’s length through protracted correspondence. Employees often feel as though they need to put their position ‘on the record’ and so respond to every written point raised.
The lost art of conversation
A reluctance to get into difficult conversations with employees is understandable. Sometimes the fear of such interactions is motivated by concern that in doing so, you are operating outside of the parameters of internal HR policies or going against the normal approach taken.
However, this hands-off approach can, and quite often does, backfire. We look at a few examples below in which a conversation early on in the process, can avoid a more confrontational situation further down the line.
A common scenario involves an employee who has gone off sick from work for a period. The employer’s policy provides for full sick pay at its discretion, but in practice full pay is paid as a matter of course.
The employee’s sickness absence extends again and again and full pay continues throughout. There has been no communication with the individual while they have been off or any mention of limits or parameters in relation to sick pay.
Understandably, a business will not want to continue paying full pay where an employee is off sick indefinitely. But a failure to engage with the issue and have that conversation means that the eventual decision to stop full pay inevitably results in a dispute with the employee and will often be argued to be disability discrimination.
It is important to remember that the fact that somebody is off work unwell and/or meets the definition of disability under the Equality Act 2010 does not automatically mean that these conversations should not take place. In fact, the opposite is often true. Employers are under an obligation to provide on-going support and contact with absent employees and so attempts should be made to maintain a reasonable dialogue.
Another common scenario relates to performance concerns, which may or may not be due to an employee’s health condition.
If these concerns are ignored and not raised with the individual, it becomes a much more difficult conversation later down the line. One initial problem ignored can easily lead to other problems arising, such as a failure to deal with performance concerns before an employee goes off on long-term sickness absence.
While the performance concerns may have existed for some time before the absence, if these have not been confronted, it is a much more difficult issue to address when the employee returns to work.
Any subsequent conversation regarding their performance will likely come as a surprise and may lead to discrimination allegations on the basis that their illness is the underlying reason rather than performance.
The importance of planning
Of course, all relevant factors will need to be considered and some careful pre-planning is required prior to having such conversations, particularly where there is an underlying health condition.
If the employee is on sick leave already, you may need to consider making reasonable adjustments to facilitate the conversation you are planning to have. For example, hosting in a neutral and easily accessible venue, scheduling the meeting to avoid commuting times, or perhaps allowing the individual to be accompanied by a partner/relative.
In all cases, it is important to remember that not having the conversation may be higher risk in the long term than avoiding the conversation in the short term.
The benefits of good conversations
Early resolution. Good conversations can result in issues being resolved at an early stage, they can prevent the matter from escalating further and can also nip an existing dispute in the bud, rather than allowing it to become protracted and contentious.
Minimising legal liability. Where an employee feels heard, they are less likely to raise a grievance, submit a data subject access request, or ultimately make a claim against their employer in an employment tribunal (such as an unfair dismissal or disability discrimination claim). Even if a claim is issued, efforts to engage with the employee to resolve the dispute can be a helpful factor in demonstrating that a reasonable approach has been taken.
Improved negotiating position and chance of success. Previous good conversations can put employers in a better negotiating position if the issue ultimately leads to a without prejudice exit discussion, or pre-termination negotiations. The employee will have a clear understanding of their employer’s concerns and the fact that this has been previously raised may mean the individual is more amenable to reaching a settlement. Further, it is important that exit negotiations are handled properly to avoid any suggestion for example that there has been any undue influence on the employee to accept the settlement. By practising the art of difficult conversations on an open basis, they can be used in any subsequent settlement negotiations to help achieve the desired outcome.
Returning employees to work or improving performance. Good conversations can help an employee feel supported and encouraged. If the ultimate goal is for the employee to come back into the business following illness, or to be coached back to a previous level of performance, then this is much more likely to take place in a collegiate environment compared to a more formal, arm’s length process.
Improve employee relations. Having an open line of communication and a practice of good employment conversations will assist with improving employee relations and morale more generally. It will inevitably help ensure that there is an on-going positive and professional relationship with colleagues.
To help management and/or HR feel empowered to embark on good employment conversations we recommend the following:
Training. As these types of conversations take a degree of practice, and require a certain skillset to maximise their effectiveness, it can be a good idea to engage an external provider to train line managers and HR teams so that they feel ready and able to have these conversations themselves.
Set expectations. Ensure that line managers are clear that their role involves communicating effectively with team members and facing difficult employee issues head on, rather than allowing them to develop into a dispute. Line managers should also be reminded to involve HR colleagues at an early stage to increase the likelihood of a successful outcome.
Keep lines of communication open. This is important for all employee relations issues and particularly so where the employee is absent. Communication with absent employees might include notifying them of any changes to the workplace, or any new initiatives or events that may be of interest. This encourages inclusivity and a positive culture and is especially important during maternity/family-related leave or sickness absence, to reduce the risk of any potential discrimination allegations.
Avoid surprises. It is important to give prior warning to employees regarding any anticipated steps in an internal process and/or any reduction in pay or benefits.
We offer training to our clients on the best way to approach difficult conversations. If you would like assistance with any particular employment issues, or training on good employment conversations or more generally, then please get in touch.
Need more information about the above people and legal expertise? Talk to one of our lawyers: +44 (0)20 7628 2000
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