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Blog: How to protect your difficult conversations – part 3

As you can tell, I do love a list.

Step by step guide to planning your difficult conversations

  1. First, you need to know what you are dealing with. Why do you want to speak with this employee? Is it because, for example:
    1. They have already brought a grievance/several grievances in the workplace?
    2. They have been making life difficult for colleagues in the workplace?
    3. You have performance concerns?
    4. You need to change something about their job/role function?

    (As they say, this is not an exhaustive list.)

  1. If you feel confident that you already have a ‘dispute’ between the business and the employee, then the ‘without prejudice route’ is probably best for you. This protects the actual contents of any discussion from disclosure, irrespective of any employment law claim the employee might bring. Remember also that you have to be trying to resolve the dispute.  If you are not sure that there is an actual dispute, give us a call and we’d be happy to talk it through. Obviously be sure to avoid any ‘unambiguous impropriety’ (see my Part 2 blog on this subject). When engaging with the employee it is best to start any conversation with ‘can we speak without prejudice?’ and make sure to follow up any conversation in writing with the words ‘without prejudice’ at the top. You may like to ask them to sign something which confirms they are happy to have a ‘without prejudice’ conversation.
  1. If you are more in the territory of 1(b) to (d) above, then you may want to consider the ‘pre-termination negotiations’ route as you are probably not in ‘dispute’ territory. I would probably sprinkle a bit of ‘without prejudice’ in there for good measure, though: remember there is no reason why you can’t use both regimes at the same time.
  1. Arrange to meet the employee. For most examples this should be planned with the employee knowing in advance that they are required to attend a meeting, albeit you don’t have to tell them in advance what the purpose of the meeting is. Consider offering the employee the right to be accompanied (see Part 2).
  1. At the meeting, explain your concerns and the employment processes that might need to be followed to address them (e.g. disciplinary, poor performance). Explain that, as an alternative, you would like to propose a settlement and exit package. I would always add here that you expect this conversation to remain confidential and inadmissible if the matter ever came to an Employment Tribunal. Also, I would always say that the conversation and whether it results in an agreed settlement negotiation will have not impact on any possible future disciplinary or performance management proceedings.
  1. Follow up the meeting by sending the employee the offered settlement terms. This can be in the form of a draft settlement agreement straight away or a more simple ‘heads of terms’ letter or email which simply summarises the key elements of the deal. My usual advice is to send a draft settlement agreement at this stage, as it sets your stall out clearly on issues that are always going to be much more important to the employer, such as termination date, confidentiality, return of company property and restrictive covenants: a letter often omits these and simply concentrates on the actual sums involved. I usually advise employers not to hand over a draft settlement agreement at the meeting. I concede that there will be a personal preference here – but I think it is more the impression it gives. I think it looks much better to say ‘Ok, well if that is something you are interested in, I can have a look at it and  come up with a draft’, rather than ‘here’s something I prepared earlier’.
  1. In the vast majority of cases, matters will swiftly proceed to an agreed exit. But do always be prepared with a Plan B. If you can’t reach an agreement on the terms of the settlement agreement, then consider what you will do next. Are you prepared to proceed with the disciplinary/poor performance process?  If not, you might need to look at the figures you are offering again.

I advise on difficult conversations every day of the week. So if you would like to chat one you are planning through, please give me a call.

Anne-Marie Boyle

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