Dealing with Gross Misconduct – How do You do it?

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Gross misconduct is behaviour so bad that it destroys the relationship between you and your employee and it usually results in dismissal. But what exactly can be considered gross misconduct? It’s important to know, so that you can avoid unfair dismissal claims.

Here’s how to identify and manage gross misconduct.

What is gross misconduct?

Gross misconduct is a serious breach of contract and includes any misconduct which, in your opinion, causes serious damage to your business, or irreparably breaks down trust and relationships.

There is no exhaustive list, but it can include theft, physical violence, bullying, damage to property, accessing pornographic sites, damaging your firm’s reputation, inability to work due to alcohol or drugs, breaching health and safety rules, failing to obey instructions, or serious neglect of duty. Repeated minor misconduct, such as being late to work, is not gross misconduct, although it can lead to dismissal after previous unexpired warnings.

Should my staff handbook include examples of gross misconduct?
Include a list of examples of what usually counts as gross misconduct, but state that it is non-exhaustive as you cannot provide for every eventuality. Each case should be looked at individually and consideration should be given to all the circumstances.

What procedure should I go through if someone has committed gross misconduct? When disciplining an employee you should follow your own disciplinary procedure and the Acas Code of Practice. If you don’t follow the Code it may render a dismissal unfair and could increase the amount of compensation an employment tribunal awards against you.

If you believe an employee has committed gross misconduct, you may need to suspend them to allow a full investigation to take place. This won’t be necessary in all cases, but it will usually be appropriate in cases of serious misconduct. If an employee is suspended it should be on full pay.

Carry out a fair and balanced investigation. At the end of it you may decide that no further action is necessary. However, if matters are to be taken further the employee should be invited to a disciplinary hearing where they will be given the opportunity to state their case and respond to the allegations against them. The hearing should then be adjourned for you to make your decision. You should notify the employee of your decision in writing and inform them of their right of appeal.

How can I decide if something counts as gross misconduct or not?  
If you’re unsure, get legal advice. In any case, if an incident is not obviously gross misconduct, it’s always better to go for the lesser sanction than to dismiss someone as such a dismissal may be held unfair. The current maximum compensation for unfair dismissal is £74,200.

If you need any more advice about identifying or dealing with gross misconduct, please do get in touch, to make sure you can avoid and tricky situations.

How Can I Sack Someone Legally?

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This is a question I’ve been asked recently. It’s easy to fire someone, but not so easy to do it without getting into trouble, so here are some tips for sacking staff legally.

1. When you fire an employee, remember the three essential steps

First, invite the employee to a meeting with you. Make sure they realise it’s a disciplinary meeting, not a chat about the weather. Second, let them have their say. Take notes and record how long it lasts so you can prove it wasn’t rushed. Third, ask a senior manager to review your initial decision – you need an impartial opinion. If you fail to follow any of these steps, the dismissal is unfair and could go to a tribunal.

2. Fire employees consistently

Last year, you discovered that someone in your sales department had been colluding with a rival. You gave him a warning. A few months ago, you found out that another salesman was doing the same thing. You sacked her. Watch out – if you behave inconsistently, you won’t have a leg to stand on in court.

3. Take your time and don’t rush into firing anyone

Don’t ambush a member of staff with an allegation and fire them on the spot. Notice of a disciplinary hearing must be given at least 24 hours before the meeting.

4. Be wary of sexual discrimination

Dismissing or demoting a pregnant employee (or woman on maternity leave) can lead to problems. It can be considered as sexual discrimination, even if you believe you have a strong case for sacking her. Make sure you get the legal issues right.

5. – and other minority groups

Regardless of length of service, i’?s unlawful to dismiss an employee on these grounds: sex or marital status; colour; race; nationality or ethnic origins; physical or mental disability; sexual orientation; religion.

6. Record everything

Companies get into legal hot water by forgetting to record things like verbal warnings. Make employees sign a form to say that they’re aware of the action taken against them and agree that it’s fair. Don’t let anything slip by undocumented.

If you need to sack someone, follow these steps carefully. Get some advice before you rush into doing anything and you’ll avoid costly problems.

How to Improve Employee Retention

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Employee retention is about keeping the great staff you have, once you’ve found them.  There are a number of factors that have an impact on improving staff retention, including:

  • Improving communication processes
  • Staff involvement
  • Confident senior and line managers with strategic direction for your organisation
  • Providing training and development opportunities
  • Market-aligned pay and benefits
  • Fair and effective management of staff by managers
  • Competence of line management.

Focus on improving these areas and you will be able to improve your employee retention. But don’t get complacent – there are many threats to retention. What might cause your employees to leave? They include:

  • Re-organisation of your company – particularly if staff are not consulted
  • Redundancies – people can lose morale when others leave
  • Recruitment freezes – this could be a sign that the business is not going places
  • Lack of confidence in management – if you people don’t have confidence in their managers they may not stay
  • Line manager incompetence ‘ your line managers may not have the skills to keep your staff!

What’s the biggest threat to employee retention? It is poor employee engagement. Work on improving your employee engagement and high employee retention will follow.

For more on employee retention, click here to watch a short video.

Happy Staff are Healthy Staff

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Well being and staff engagement are very closely linked. When your staff are happy and engaged with their work, they will be less stressed and therefore healthier. When your staff are less stressed and healthier, they will find it easier to be engaged with their work. And engaged, happy staff are far productive than unhappy staff.

Employee well being is about being healthy, self confident, having emotional resilience, having a sense of purpose, an active open mind and a supportive network of relationships.

When you can look after the physical and emotional well being of your staff, and pay attention their personal development and their values, your business will benefit, as this diagram shows.

 

Source: ‘What’s happening with well-being at work?’ CIPD May 2007

So look after your staff and you will see your business prosper!

How do you make sure your staff are happy and healthy?

What is Motivation and How Can You Improve it in Your Staff?

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Motivation determines how your employees choose to allocate their energy – where they put their focus. When they’re at work, you want them to put their focus and energy onto what they’re doing and onto your business.

Motivation is affected by a number of factors, including:

  • Being treated with fairness and respect
  • Getting pride and fulfilment from their work
  • Feeling that they and their work are valued
  • Confidence in the direction in which the organisation is going.

How does motivation work? There are five components, as shown in this diagram.

 

Source: XpertHR 17 November 2010

Your actions create results; these results are evaluated by other people; outcomes occur as a result of those evaluations; your needs will either be satisfied or not by those outcomes. Positive evaluations or outcomes can lead to needs being satisfied and increased motivation!

So what can you do as a manager, to improve motivation in your team?

Think about your answers to these questions:

  1. Do you treat employees with fairness and respect?
  2. Do you know what motivates the different members of your team?
  3. Do you use this information to play to their strengths and keep motivation up?
  4. Are your team meetings a two way process?
  5. Do you allow the sharing of ideas from members of your team?
  6. Do you share achievements of the company and of individuals?

How many of those questions did you answer No to? If it was more than three then you might have a problem with motivation – or you might see one emerging soon!

Employee Engagement – Where is it Going?

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According to the CIPD Employee Winter Outlook for 2012-2013, employee engagement levels dipped to just 35%. At the same time, a massive 61% of employees are neither engaged nor disengaged with their jobs and their companies.

On a more positive note, engagement is highest in small businesses, with 60% of staff in small businesses saying they’re happy at work. Perhaps this is because a disengaged member of staff can cause more problems within a small team and issues can be spotted more easily than in a large business?

Employees with the shortest service are the most engaged at 43%. This means that as a manager, you need to make sure you look after your staff as they continue their service with you. Don’t get complacent and assume that they’re still happy just because they haven’t left.

56% of staff agree they have achieved the right work life balance. Is this enough or do you want more of your staff to have the right balance?

Here are some more interesting numbers from the survey:

  • 19% feel it is likely or very likely they could lose their job
  • 20% are looking for a new job
  • 26% of senior managers are looking for a new job
  • 36% of employees with 1 or 2 years service are job seeking
  • 33% report that redundancies have been made
  • 14% say redundancies are planned
  • 42% of employers have frozen pay
  • 20% report that working hours have been decreased

How engaged are your staff? How has this changed in the last year?

How Happy Are Your Employees? How Do You Know?

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I’ve written a lot recently about employee engagement. What is it? It’s a positive attitude held by your employees towards your company and its values. An engaged employee knows where your business is going and works with colleagues to improve performance to benefit your business. But how do you measure engagement? How do you know just how engaged your people are with your business?

To find out how happy your employees are, you could start with a survey. This will give you a quantitative measure, such as a score or the percentage of people saying they are ‘very happy’, ‘quite happy’ and so on. It relies on a quantity of people answering the survey to provide an accurate result that is representative of your staff.

A good survey helps you not only determine the level of engagement (or disengagement) within your company, as well as which elements help drive engagement, are very good or need work. An employee engagement survey can help you find out how your people feel about whether or not they feel listened to, how much they trust their leaders and other emotions, views and experiences.

So why not just ask how engaged your employees feel?

Probably because job satisfaction is not the same as being engaged. Since studies show that 70% of UK workers don?t actually trust their management, can you trust them to give an accurate answer to this question?

The other thing to consider with surveys is that they are not engagement. When the results are in, what happens next? Engagement isn’t something you can tick off.

So what do you really want to measure? Employee engagement is inextricably linked to increased customer satisfaction and subsequent profitability. So rather than trying to measure employee engagement and customer satisfaction separately, you can evaluate the two together. If customer satisfaction improves, then your people are more engaged. If sales are up, customer satisfaction is increased and employee engagement is raised.

So what’s the best way to measure employee engagement? Start by carrying out an employee engagement survey to establish baseline scores. Use the results to decide what improvement initiatives you are going to use. Then resurvey periodically to measure the effectiveness of changes you make.

Just remember that employees feel engaged when they feel listened to. So if you carry out a survey, really listen to what your people say and do something about it. That way everyone will see the benefits – your employees, your business and your clients.

How happy are your clients? How do you know?

Unfair Dismissal Claims – Q and A

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Here are some common questions about unfair dismissal and my answers to them.

Q – What is unfair dismissal?

A – Dismissals are classed as ‘automatically unfair’, regardless of the reasonableness, if an employee is exercising their rights related to the following:

  • Pregnancy, including all reasons relating to maternity
  • Family reasons, including parental leave, paternity leave, adoption leave or time off for dependants
  • Representative and trade union membership grounds and union recognition
  • Discrimination on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation
  • Pay and working hours, including the Working Time Regulations, annual leave and the National Minimum Wage.

Q – When is a dismissal fair?

A – Dismissal is normally fair if an employer can show that it is for one of the following reasons:

  • A reason related to an employee’s conduct
  • A reason related to an employee’s capability or qualifications for the job
  • Because of a redundancy
  • Because a statutory duty or restriction prohibited the employment being continued
  • Some other substantial reason of a kind which justifies the dismissal.

Q – How do you dismiss employees?

A – The key points to remember are:

    • Dismissing employees should be the last resort and employers should carry out necessary investigations without unreasonable delay to establish the facts
    • Employers should use a fair and consistent procedure when dismissing employees
    • It’s always best to try to resolve any issues informally first
    • Employees have the right not to be unfairly dismissed
    • Set out in writing your rules and procedures for handling disciplinary procedures
    • Make sure employees and managers understand the rules and procedures for disciplinary issues.

Q – When can an employee make a claim about unfair dismissal?

A – In most circumstances employees will need to qualify before they can make a complaint to an employment tribunal. They need:

  • At least one year’s continuous service for employees in employment before 6th April 2012
  • Two years for employees starting employment on or after 6th April 2012.

Q – How do you avoid costly mistakes?

A – Before thinking about dismissing an employee, stop and think – are you doing the right thing? To make sure that you comply with the law and don’t make any costly mistakes, whether you’re an employee or an employer, get the right advice.

Top Ten Issues Affecting Employee Engagement

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According to a survey carried out by XpertHR in 2011, the top ten issues that affect employee engagement are:

  1. Pay
  2. Quality of line management
  3. Job security
  4. Leadership visibility and confidence
  5. Relationship with manager
  6. Working culture
  7. Internal communications
  8. Organisational change
  9. Workload
  10. Job satisfaction

I’m not sure if these are ranked in any particular order, or the size of the companies that took part in the survey, but the list makes interesting reading.

If you ask your staff how happy they are at work and what is stopping them from being fully engaged, would they list any of these issues? How many of them?

The good news is that you can do something about all these issues – whether you think they’re a problem or not. Work through the list and make sure you’re doing all you can for your employees – giving them top quality line management, strong leadership and effective internal communication. Employee engagement, or keeping your staff happy and motivated, is not just about giving them a pay rise!

You can find out even more about the best way to keep your employees engaged – and thus how to grow your business and your profitability – at my next workshop on 17 April 2013 in Reading. It costs just £20 +VAT and places are limited, so click here to book your place.

Can You Serve an Unfair Dismissal Claim While on ‘Garden Leave’?

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‘Garden leave’ is a period of time after you’ve been asked to leave your job or you’ve been made redundant, when your employer carries on paying you, but when they don’t want you to continue coming to work. During this time, you’re still employed so you can’t take another job with a different employer.

So can you serve an unfair dismissal claim while on garden leave? Can you appeal against being asked to leave your job?

To serve an unfair dismissal claim, you need to complete the form ET1 to send to the employment tribunal. You can only submit this form after you have been dismissed and worked your notice. ‘Garden leave’ is notice without having to do the work you’re being paid for. If you’re thinking about a tribunal application then you must do this within three months of your termination date. If you’re on ‘garden leave’ then you are still employed, even though you’re not working. This means that if you want to make a claim for unfair dismissal, you can’t do it during a period of garden leave – you have to wait until you actually finish working for that employer and they are no longer paying you.

Your contract of employment will tell you what else you can and can’t do while on garden leave and what your employer will expect from you during that time.

In addition, if you were employed after 6 April 2012, you need to have worked for the company for two years, to be able to claim unfair dismissal. If you started work before 6 April 2012 you have to have completed one year’s service to be able to claim unfair dismissal. (This means that at the time of writing this blog in March 2013, no one will actually be able to claim that they have been unfairly dismissed until 6 April 2014.)

There is more information on all this, including a short video that explains it all, on my website. Click here to watch the video.