How should I manage problem employees?
Sejal Patel, Employment Solicitor, Lawson-West Solicitors, Leicester
Employers need to be cautious when dealing with difficult employees. Where an issue arises due to the differing opinions or beliefs of employees, and those opinions or beliefs are protected by discrimination legislation (e.g. they relate to religion, race, sexual orientation, disability, or any other protected characteristic) employers must be careful not to risk themselves to discrimination and/or unfair dismissal claims.
So, what can employers do to protect themselves?
Investigate apparent personality clashes or disruptive behaviour fully. An employee may be acting out for valid reasons e.g. if they are struggling, suffering with stress, going through personal issues, or being bullied. This may affect what action you take in the circumstances, and how you approach the individuals involved or how you discuss their behaviour with them.
If employees are not getting along, consider inviting them to attend workplace mediation, either with a member of your own HR team or an external HR consultant. This will enable the employees to talk through their issues with a view to finding a practical way forward.
It may be appropriate to relocate Consider internal or external secondments, or a sideways move. Discuss this openly with the employees but be careful not to expose yourself to any allegations of favouritism, marginalisation or having demoted someone. If you do so, you will run the risk of the affected employee resigning and possibly claiming constructive unfair dismissal or alleging discrimination depending on the circumstances.
Ensure you have a well-drafted anti-bullying and harassment policies in place (if you do not already) and operate a zero-tolerance approach. There is often be a fine line between personality clashes and bullying/harassment. Therefore it is crucial to send a clear message to all employees. Also ensure you have well-drafted disciplinary and grievance policies as these provide you and your employees with certainty.
Include the correct notice, termination, payment in lieu of notice, suspension and garden leave clause in your employment contracts. This will give you flexibility to terminate an employee’s employment if appropriate.
Employers are advised to have a performance management procedure in place to monitor the performance and development of their employees on a regular basis. It should be rolled out across the entire organisation and not exclude any individuals regardless of their seniority. The meetings are an opportunity for both the employer and employee to discuss any issues, celebrate success, look ahead and set goals. However any issues relating to the development and performance of an individual should be addressed head on in the first instance, if there is no change and the problems persist, it may become appropriate to take disciplinary action.
If you genuinely believe that there is no other option available but to dismiss an employee because of their personality/behavioural issues, implement a fair dismissal process. Document your reasons for the termination, including how their employment is having (and would continue to have) a significant impact on your business, on your other members of staff, your customers/clients/suppliers, and the general workplace morale. More information on when dismissing an employee can be found here:- https://www.lawson-west.co.uk/for-business/services/employment-and-hr-services/pages/dismissing-an-employee
Finally, if you are unsure seek legal advice before taking any action so as to guard against the risk of a disgruntled employee issuing proceedings against you. This risk should not be underestimated.
Our employment team is able to provide you with the necessary guidance and advice to ensure you follow the correct procedures to protect both yourself as the employer and your employees. It can be a minefield, but we can help you navigate your way through it.
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