Category Archives: Discipline

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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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.

 

 

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.

Dealing with Disciplinary and Capability Issues

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It is a mistake to think that performance problems, whether they be capability or disciplinary in nature, will simply go away or sort themselves out.  

Issues such as sickness absence, poor attitudes/behavior, failure to meet objectives and poor general standards of work must be dealt with appropriately and effectively as soon as they occur. 

In most instances and informal chat may be enough to solve the problem but if not then you have laid the groundwork for the formal disciplinary process to begin. 

 What to consider when planning your approach:

  • Do you want to conduct an initial informal chat or start with a more formal meeting? Is the employee entitled to be accompanied by a representative at the meeting?
  • What is an appropriate review/warning period?
  • If dismissal is a possible end result, are there any alternative work options available to the employee?
  • What acts of poor performance are serious enough to instigate a dismissal procedure?
  • If the issue involves bad attitude/behaviour ? is this a capability or conduct issue? What are the differences in approach to handling these issues?
  • What are the legal requirements of a disciplinary procedure?  Informal and formal meetings, formal and informal warnings, right to respond, opportunities to improve etc. 

On Thursday 21st June we will be holding a workshop covering the practical aspects of carrying out a capability or disciplinary procedure.  We’ll look at what the differences are between capability and disciplinary and how you can handle them with confidence and success. 

The workshop will be held at the Hennerton Golf Club from 9.30am to 12.30pm.  Please contact Sue for further details or to book your place.

Sickness Absence

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Every employee will invariably be sick and unable to work from time to time.  But it is important to keep in contact to establish any support they need and when you can expect them to return to work. In extreme circumstances, or where you suspect the sickness my not be genuine, it may be necessary to terminate a contract of employment but you must follow a fair procedure first – do you have the correct processes in place?

Short Term Absence:

  • Discuss the problem with your employee as soon as possible and keep lines of communication open at all times
  • Monitor the absence and document the ‘calling in sick’ process.  Can the employee complete a self-certification notification or do you require a Dr’s letter?
  • Once your employee is fit to return to work, make sure you have all your ducks in a row and have conducted a thorough return to work interview
  • If necessary instigate a formal action process including warnings and dismissal, as a last resort
  • Learn from employee absence, conduct reviews and look for patterns that can help you to avoid absence in the future

Long Term Absence:

  • This is when a period of absence exceeds four weeks in duration.  In these instances an employee is required to provide medical support
  • Keep in regular contact and help to obtain medical advice that will assist in return to work
  • Avoid the risk of disability discrimination by taking your duty of care seriously and making all necessary adjustments
  • Manage return to work effectively, consider a phased return where necessary or take all the right steps to instigate dismissal on the grounds of ill health

Dismissal is always a last resort, factors that must be taken in to consideration before heading down this path include:

  • The nature and length of the illness
  • Length of service and previous record
  • Any improvement in attendance
  • The effect of absence on colleagues and the business as a whole
  • Whether there are other employment options available

Unfair Dismissal ? the latest legal developments

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On 6th April a simple but highly controversial change in unfair dismissal law came into force.  From this date, the qualifying period for unfair dismissal went up from one year to two years, meaning that until an employee has completed a continuous period of two years in their employment they will not be able to bring a case of unfair dismissal.

However, it is important also to note that this only applies to employees whose contracts commenced on or after 6 April 2012.  Anyone employed before that date will qualify for unfair dismissal after a single year of continuous service.

Please update your disciplinary and grievance procedures to reflect these changes.

How to Handle Disciplinary Issues and Help Employees Improve Their Performance

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It is important to handle any disciplinary situation quickly, fairly and appropriately.  Small businesses often find it easier to deal with an incidence of misconduct informally particularly when the issue is minor in nature.  Hold an informal meeting to ensure that the employee understands why their behaviour has been deemed unsatisfactory and seek agreement/agree steps to ensure that the behaviour does not continue or recur. 

If informal warnings have not produced the desired result and the unsatisfactory behaviour continues, the next step is to arrange an investigation by an impartial Manager.  An investigation should include review of HR records and any previous warnings/issues that may have occurred, talking to other Managers with knowledge of the misconduct and interviewing any witnesses.

Should the investigation indicate that there is a disciplinary case to answer then you will need to invoke a formal disciplinary procedure.  Most companies operate a 3-stage process: (1) written warning, (2) final written warning, (3) Dismissal.  There is no legal obligation to start at the beginning of the procedure.  The type of warning issued will depend on the seriousness of the offence.

In the event of an act of gross misconduct, i.e. an act of such a serious nature that it fundamentally breaches the contractual relationship between employer and employee then you have the right to dismiss the employee immediately without notice or pay in lieu of notice.