Whilst we all experience varying amounts of pressure throughout our working lives, when this pressure develops into stress it is time for both the employee and employer to take positive action.
According to the Health & Safety Executive stress is “the adverse reaction people have to excessive pressures or other types of demand on them at work”. It is estimated that the cost of sickness absence resulting from work-related mental-health problems is approximately £1.3 billion per annum with stress taking centre stage as the major cause of long term sickness absence in the UK.
As an employer you have a legal duty to ensure the health, safety and welfare of your employees and whilst you are not required to eliminate all pressures in the workplace you do have a common law duty to take reasonable care and minimise the risks wherever possible.
If you suspect an employee may be suffering from stress there are steps you can take. Hold a meeting and encourage open and honest dialogue about how they are feeling and what stress they feel they are under. In closely working teams other employees may have already raised concerns about a colleague, speak to them to find out what the causes/pressures might be.
If the cause of the stress is work related then it is important you act promptly and appropriately. There are legal consequences for handling issues of stress badly including personal injury/psychiatric injury litigation, unfair or constructive dismissal or discrimination claims.
When capability and conduct issues come into play it is important to take proactive action to quickly remedy the situation whilst balancing your responsibilities in terms of employee statutory rights. Here are some tips that can help:
- When a performance issue arises deal with it there and then, not dealing with a problem in its infancy can lead to a major crisis if left to fester.
- Give your employee the benefit of the doubt and work in partnership with them to develop a suitable action plan.
- Establish the causes of poor performance and pinpoint examples of where performance is lacking.
- Put a road map in place that includes how you will support your employee, clear performance expectations going forward and any training, coaching programmes necessary to rectify the situation.
- Consider alternative employment options. Whilst you do not have a duty to do this it is a good preventative step to avoid employment tribunal and unfair dismissal claims.
- Hold an informal meeting in the first instance to ensure that the employee understands why their behaviour has been deemed unsatisfactory and agree steps to ensure that the behaviour does not recur.
- If informal warnings have not produced the desired invoke a formal disciplinary procedure including investigation of the facts and written warnings, before heading down the route of dismissal.In the event of an act of gross misconduct you have the right to dismiss the employee, following an investigation and meeting, without notice or pay in lieu of notice.
Having clear expectations of employee performance and managing these on a daily basis are critical success factors for every business. A high performing business knows which employees are delivering and which are failing but addressing issues of underperformance is no easy task.
It can be difficult to establish if poor performance is due to inherent incapability or misconduct.
Capability refers to an employee’s skills, ability, aptitude and knowledge in relation to the job that he or she is employed to do. The key feature of lack of capability is that it is not the employee’s fault. Very few employees choose to perform their work badly, make mistakes, fail to complete tasks or have poor relationships with colleagues or customers.
Misconduct refers to any behaviour that falls below that of the standard required by your business or behaviour which fundamentally breaches a contract of employment such as fraud, theft, damage of company property, harassment or bullying. There is no legal definition of misconduct, it is very much dependant on the type of business you operate, the nature of work undertaken by your employees and the risks to your business.
A lack of capability exists where no matter how hard an employee tries, he or she is simply unable to perform the job to the standard required by the employer. If an employee fails to come up to the required standard as a result of his or her own carelessness, negligence or idleness, this will not constitute incapability, but could be regarded as misconduct.
One of the key distinctions between capability and conduct is that lack of capability will usually be outside the employee’s direct control, while the same employee obviously will have control over his or her conduct at work.
To find out more about managing capability and conduct issues and the ways in which these can be dealt with to ensure that employees are treated fairly and reasonably whilst preserving the interests of your business read the latest copy of our Working Together newsletter.