Legal risk in conversations
Worried About Saying the Wrong Thing
You know a conversation needs to happen. But you are anxious about saying something that makes the situation worse legally. So the conversation keeps getting delayed, and the situation keeps drifting.
This is one of the most common reasons business owners put things off
The fear of saying the wrong thing is real. Employment law is complicated. The wrong phrase in the wrong context can turn a manageable situation into something much more serious. That anxiety is entirely understandable.
But the result of that anxiety is usually that nothing gets said at all. And the longer a situation goes unaddressed, the fewer options you have and the more legal exposure often builds, not less.
The risk is not just in what you say. It is in what you do not say. Failing to address poor performance, not raising conduct concerns, or avoiding a necessary conversation can all create problems further down the line.
The answer is not to say nothing. It is to understand what you can say, in what context, and how, so that the conversation happens properly.
What delay actually costs you
- Performance or conduct problems embed themselves while you wait for the right moment
- The employee's solicitor may use the delay as evidence that the issue was not serious
- A situation that could have been resolved informally becomes a formal process
- Other employees observe the behaviour and conclude that standards do not apply
- Your legal exposure grows, not shrinks, the longer a documented issue goes unaddressed
- When the conversation finally happens, it is under worse conditions with more at stake
How to have the conversation without creating new problems
- 1
Know the difference between informal and formal conversations
Not every difficult conversation is a formal HR step. Many early conversations about performance, attitude or behaviour are best handled informally. Understanding which register you are in, and what that means for how you frame it, changes what you can say and how.
- 2
Keep it factual and specific
The conversations that create legal risk are usually the ones based on feelings, assumptions or generalisations. Stick to what you have observed, what the impact has been, and what you need to change. This is not just legally safer, it is also more effective.
- 3
Understand what you should not say in specific contexts
Some phrases carry legal risk in certain contexts, particularly in formal processes. Knowing what not to say in a disciplinary hearing, a performance meeting, or a conversation about a potential settlement is as important as knowing what to say.
- 4
Get advice before the conversation, not just after
Most business owners reach out after a conversation has gone wrong. Getting a session with Samantha before the conversation means you go into it knowing exactly what you can say, what to avoid, and how to frame it. The session gives you a written plan to refer back to.
Common questions
Questions business owners ask about this
What should I not say to an employee during a difficult conversation?+
The most common things to avoid are: making assumptions about the employee's intentions or mental state; referring to anything that could be seen as related to a protected characteristic such as age, health, or family situation; making promises you cannot keep; and saying anything that could be interpreted as pre-judging the outcome of a formal process. Keeping the conversation factual, specific and focused on observable behaviour reduces most of the risk.
Can an informal conversation be used against me in a tribunal?+
It depends on what was said and the context. Conversations that are genuinely informal and exploratory carry less risk. But if an employee later claims that something said in an informal meeting amounted to harassment, a threat, or pre-judgement of a formal process, that conversation can become relevant. Having a clear understanding of what you can and cannot say in different contexts is important.
What is a protected conversation and when does it apply?+
A protected conversation is a specific legal mechanism that allows an employer to have an off-the-record discussion about ending employment, typically in the context of a settlement offer. When conducted correctly, it cannot normally be used as evidence in an unfair dismissal claim. However, it does not protect against discrimination claims, and it only applies in specific circumstances. Getting the framing right matters.
I said something I shouldn't have in a meeting. What do I do?+
Do not panic, but do not ignore it either. The impact depends heavily on what was said, who was present, and whether anyone has complained or made a record of it. Getting advice quickly, before anything else is said or done, gives you the best chance of containing the situation. Early intervention is almost always less costly than trying to manage the fallout later.
Does it matter who else is in the room during a difficult conversation?+
Yes. For formal processes, disciplinaries, performance meetings, grievance hearings, having the right people present and the right records kept is part of the process. For informal conversations, having a witness is sometimes wise. Who is present, and what they hear, can become significant if the situation escalates.
How do I have a difficult conversation about performance without it becoming a discrimination claim?+
Keep the conversation focused on specific, observable facts and measurable expectations. Avoid any language that could connect the performance concern to a protected characteristic, age, disability, pregnancy, religion, and so on. Apply the same standards you would apply to any other employee in the same role. Document what was discussed and follow up in writing.
You might also be dealing with
These situations often come up alongside each other.
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