Dealing with Gross Misconduct

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What do you do when a trusted employee acts in such a way as to fundamentally breach the contractual relationship you have in place between you?

No easy task and always a worse nightmare situation for any employer, acts of gross misconduct are unfortunately all too often a reality we have to face.  So what tools do you have in your armour to help you deal with the situation quickly, efficiently and with the minimum of damage to your business?

Where gross misconduct is concerned you have the right to implement a summary dismissal procedure, an immediate dismissal without notice or payment in lieu of notice, as long as you can demonstrate that you have a solid reason, have conducted a thorough investigation and have followed proper procedure.  However, it is advisable in all except the most extreme cases to conduct a full disciplinary process first including two to three warnings (written and verbal) and provision for the employee to appeal.

Dismissal is always a last resort but armour up and ensure you have the right procedures in places to deal with this if you have to.

Causes of Lack of Capability: Stress

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We have looked a lot at capability issues over the last few weeks.  As mentioned previously 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 and is generally outside the employee’s control.  With this in mind in this week’s blog we are looking at stress as a cause of lack of capability in the workplace.

The HSC define stress as an adverse reaction people have to excessive pressures or other types of demand placed on them.  Whilst there is no specific legislation as to how to handle stress in the workplace, as an employer you have a duty of care to take reasonable measures to manage stress under the Health and Safety at Work Act.  This is not only for the benefit of your employees but also for the benefit and long term success of your business.

Stress has a significant impact on your bottom line! It is estimated that on average in the UK 10.8 million working days are lost each year as a result of stress, and the cost of sickness absence resulting from work-related mental health problems, of which stress is undoubtedly the primary cause, costs on average £120 per day.

Whilst it is impossible to eliminate all pressures from the workplace you must do everything in your power to reduce the risk of harm and be aware of the early warning signs before it is too late.  These can include past history of stress, increases in absence, physical manifestation such as rashes, changes to behaviour e.g. irritability and complaints from peers.

When you suspect an employee is suffering from the early signs of stress act immediately.  Consider the amount and type of work the employee undertakes and what changes can be made; provide extra supervision and support and offer counselling.  Getting it wrong or not dealing with this issue effectively can result in damaging, in terms of cost and reputation, negligence and personal injury claims.

How thorough is your recruitment process? Here are our top tips:

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Step 1 Preparation:

The key is to put together a comprehensive Job analysis, job description and personality specification – why is the role needed what skills, knowledge and experience does your new employee need to have?  In addition, conduct salary benchmarking, in the market and internally, to ensure you are attracting the right caliber of candidate.

Step 2: Attracting and selecting the right candidate:

There are many tools at your disposal in this regard – advertising, social media, word of mouth, recruitment agencies, websites, job centre etc.  Select the right one/combination to ensure you reach your target audience.   Once you have collected CV’s use these to put together a shortlist for interview, this will give a you full picture of the individual and whether or not they are a match for your organisation and the role you are recruiting for.  Additionally, you can utilise tools such as psychometric testing and practical exercises to see how the individual performs outside of the formal interview process.  Once you have selected the right candidate make them an offer in writing.

Step 3: Legal Compliance

Once you have selected the best candidate for the role there are certain legal requirements you must undertake including discrimination profiling, a medical questionnaire, eligibility to work in the UK and proof of adequate references.  In addition dependent on the role you are recruiting for you may also need to ensure you are paying minimum wage, conduct a CRB check and gather the required documentation to confirm that the candidate is eligible to work in the UK.

For more information on how to get the most out of your recruitment process please contact me at sueferguson@optionshr.co.uk .  The Options HR team have a vast amount of experience in:

  • Personality profiling
  • Helping you to shortlist and interview candidates
  • Guiding you through the selection process
  • Preparing, reviewing and amending offer letters and contracts of employment
  • Developing induction procedures.

Capability vs Disciplinary – Case Study 2 – Suggestions to Combat Underperformance

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Last week we introduced you to Karen, she has been underperforming for the last eight years with your company.  She is unsociable, intimidating, rude and fails to take responsibility for her actions.  This has led to numerous complaints from her peers, supervisors and managers, with one colleague threatening to resign as a result of Karen’s behaviour.

What action should you take to deal with Karen? What procedures should you invoke? Here are a few suggestions:

  • Conduct an informal interview with Karen in the first instance with the aim of getting to the root of the problem.  Ask her to explain why she is behaving the way she is – what are the underlying problems from her point of view
  • Gather evidence from other people – her colleagues, supervisors and managers.  In particular talk to the person that has threatened to leave, find out what has been going on and persuade them to stay by reassuring them that you are dealing with the problem
  • Get input from your HR department and consultants.  It can be very valuable to get input from someone who can look at the overall situation and be impartial.  The line manager cannot do the investigation and  decision making
  • Don’t let it go on too long – Karen’s manager may need help with performance reviews / dealing with staff issues
  • If all else fails invoke a formal disciplinary procedure including informal and written warning and dismissal if appropriate.

Capability vs Disciplinary – Case Study 2

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This week we are bringing you another capability vs. disciplinary case study.  Meet Karen!

Karen has been working for your company for eight years and during this time has failed to be a team player which has had a marked effect on both her performance and those working with her.  The underlying problem with Karen’s performance is the way in which she interacts with her peers:

  • Karen will often refuse to speak to her colleagues
  • Karen fails to take responsibility for her actions and blames her colleagues for problems that she has caused herself
  • Karen has been known to have threatened and intimidated a number of her colleagues
  • Karen has singled out one member of staff in particular for not particular reason

Over the eight years you have built up quite a thick file on Karen including complaints from peers, supervisors and managers.  Recently you have received two complaints from managers in relation to Karen’s attitude to other members of staff and the upset she has been causing.  In addition you have received an email from one of Karen’s colleagues which concludes by saying -…I can’t work with Karen any longer, her petty behaviour is making my work life unbearable, I am going to have to leave?.

What action should you take in this case? What procedures should you invoke? Tune in next week for the answers…

Capability vs. Disciplinary – Case Study

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Following on from Annabelle’s story last week… Both sides are now aggrieved – what is the solution?

  • Investigate Annabelle’s grievance thoroughly – is her grievance genuine and based on fact or is she manipulating the situation in order to hide or detract from the issues with her own performance?  Her employer must try and give her the benefit of the doubt but at the same time bring the issues with her performance to her attention in a constructive way and develop a suitable action plan that can help dispel the grievance situation for both parties.
  •  Give Brian some support to help with his management skills and ensure that an issue like this cannot recur in the future.
  •  Set up performance reviews for Annabelle.   Establish the causes of poor performance e.g. insufficient training, poor working relationships, lack of understanding, lack of motivation, poor attitude.  Pinpoint examples of where her performance is lacking, set clear performance expectations going forward and take positive steps to rectify the situation such as training and coaching.
  • If after all that is done and Annabelle problem is identified as one of attitude rather than aptitude then  speak to her about about disciplinary rather than capability management.  Hold an informal meeting in the first instance to ensure that she understands why her behaviour has been deemed unsatisfactory and agree steps to ensure that the behaviour does not recur.
  •  If informal warnings have not produced the desired result and Annabelle’s unsatisfactory behaviour continues, the next step is to conduct a thorough investigation invoke a formal disciplinary procedure, including written warnings, before heading down the route of dismissal.

Capability vs. Disciplinary – Case Study

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In a recent blog we looked at performance management and how to distinguish between issues of capability and misconduct when dealing with the underperformance of employees.  To bring this issue to life we would like to introduce you to Annabelle.

Annabelle has worked as a marketing assistant in the marketing department of retail company for 3 years, during this time she has consistently underperformed, indeed underperformance was an issue from day one for Annabelle when she failed her probationary period.

Taking a proactive approach rather than instantly dismissing Annabelle, her employer provided some coaching.  This initially had a positive effect on her performance but unfortunately in recent months things have begun to slip again, she repeatedly, and frustrating for her manager, makes the same mistakes over and over, does not take guidance well, often has to have tasks explained to her several times and makes consistent inaccuracies in proposals  .

Now a major problem for her employer, Annabelle’s mistakes are costing them money and having a detrimental effect on the marketing team and business as a whole.  Annabelle’s manager is results driven, he feels she has been given an easy ride by the business and undertakes a formal review of her work.

On the flip side, Annabelle feels that she has not been supported by her employer, that she is not being properly managed and that she lacks coherent and consistent guidance.

Annabelle’s manager invites her to a meeting to discuss the on-going issues with her performance and although this meeting is handled in a professional manner, with legitimate concerns raised and examples of underperformance given, Annabelle feels bullied and raises a formal grievance against her manager.

Both sides are now aggrieved – what is the solution?

 

Check out next week’s blog for the solution to this problem.

 

 

Absence Management

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It is estimated that unauthorised absence costs the UK economy around £10bn-£12bn every year with employees failing to come to work for no good reason an average of 8 days each.   With the Olympics just a few short weeks away, and an expected rise is unauthorised absence predicted it important that you plan ahead to avoid unauthorised absence.

To stay on top of unauthorised absence you must put in place thorough absence policy that includes how absence will be managed; states clearly what absence is and is not permitted; details of how absence will be recorded and monitored; reporting lines and disciplinary procedures.

When you suspect an employee is taking an unauthorised day off you should:

  • Make contact on day 1 to establish the reason for the absence
  • If you are not satisfied that the reason for absence is genuine follow up with a letter on day 2
  • If the employee does not make contact and remains absent from work without notice you may have cause to assume resignation and formalise the appropriate procedures
  • If the employee returns to work you should always conduct further investigation in order to prevent a similar absence from occurring in the future and where necessary invoke a formal disciplinary process
  • If an employee takes annual leave despite being previously refused you must contact them immediately in writing and again invoke a formal disciplinary process.

Having in place a robust absence management policy will reap long term rewards by: –

  • Identifying the causes of poor attendance.
  • Providing support.
  • Increasing loyalty and motivation.
  • Deterring casual absence.
  • Identifying problems at work.
  • Improving morale and motivation.
  • Leading to reduction in absence.
  • Improving productivity.

Managing Stress in the Workplace

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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.

Managing Capability and Conduct Issues Effectively to Avoid Dismissal

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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.