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My difficult employee – how should I manage unhelpful behaviour, and when does it become a dismissible offence?

Everyone has an off day, but some employees are just too disruptive, and at myHRdept we’ve seen numerous examples of employers suffering in silence, believing there is nothing they can do.

Mr Perkins was by all accounts a difficult man.  His employer, the St George’s Healthcare Trust, described him as ‘aloof, stubborn and at times intimidating.’ In terms of his approach to work, his manager described him as exhibiting a ‘continual sense of “won’t do” as opposed to…’I’m not sure but I’ll see what can be done.’

Eventually the trust had had enough of him and he was fired.  They followed a poor procedure and classed the dismissal as ‘misconduct’ which was an error, but these factors did not make the decision unfair.  The Appeal Court concluded that the Trust had no realistic alternative to dismissing him, and earlier in the legal process other courts had ruled that had the Trust followed fair procedures he would inevitably have been dismissed anyway, and Perkins’ own conduct had been 100% responsible for that.

So practically what can we learn from this case and what can we do if an employee’s uncooperative behaviour falls short of being misconduct, but is causing issues at work?  Quite often we’ve found that the root of the issue is the manager’s reluctance to actually manage the employee.  If behaviour is causing concern step 1 is to sit down confidentially with the employee and explain the situation as we see it, asking the employee for their explanation.   We often provide clients with a performance improvement plan (PIP) tool – which is basically a spreadsheet that starts with a column ‘what we see now’ (with the problem behaviours described) and then another column ‘what we need to see.’  This is covered by a Performance Management Policy and the accompanying toolkit. This Policy is something every employer should have, and read, and be prepared to use - contact us if you’d like to buy one for your business – if you’re a Premium Plus subscriber this is included already.

The first performance meeting should be accompanied by an informal warning that if things don’t change on a permanent basis by a certain date, a formal warning will follow. Using the Performance Management Policy we can then escalate to a written, and if necessary a final written warning before effecting a dismissal with notice – making sure of course that you work with your myHRdept advisor all the way through.  In some cases the disruptive behaviour might be so bad that a single first and final warning might suffice prior to dismissal. 

So our golden rules for dealing with the disruptive employee:

  • Discuss the problem with the employee and try and sort it out informally first
  • If there appears to be a medical cause, stop and consult your myHRdept Advisor
  • If there is not a medical issue schedule a meeting with the employee under the Performance Management Policy (they can be accompanied by a work colleague or Trade Union representative – nobody else)
  • Use the meeting to define the problem, to try to agree the desired outcome and set a timetable for improvement – administer a performance warning in accordance with the policy.
  • Follow the meeting with a letter summarising the warning and the likely consequences (final warning or dismissal) of a failure to improve the behaviour (your myHRdept Advisor will draft this for you.)
  • Hold the follow up meeting at the end of the review period (again allowing a companion) to decide whether a further warning or dismissal is appropriate or whether the employee has actually improved sufficiently.
  • Unless the employee has actually been guilty of misconduct (as opposed to just being unpleasant or difficult) any eventual dismissal should be on grounds of ‘some other substantial reason’ and the higher of contractual or statutory notice should be given (this can sometimes be paid in lieu if you don’t want the employee to work it.)  

 

‘We are a small business and can’t be doing with processes like that.’ Is another common objection and we understand that – with 8 core staff we are a small business ourselves! Sometimes we are able to hold these meetings on behalf of our clients at their premises (or indeed at our offices) or there is another way – to begin the process as I have outlined (with coaching from your myHRdept Advisor it really isn’t that difficult) and then propose a voluntary settlement agreement to end the employee’s employment with some compensation.  There are strict rules about how this can be done (myHRdept will advise), the process is more expensive, but is also quicker and saves the discomfort of having to manage a formal procedure through to conclusion.    

If you're thinking of outsourcing your HR why not contact myhrdept.co.uk. With start up packages from £65 per month, full service Premium Plus packages from only £110 per month and fixed price HR support options available for one-off issues, we believe we offer the best combination of quality and price available in the UK. Call us on 01628 820515 to discuss your requirements email us here and we’ll call you back.

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