Managing a poor performer

The current UK General Election has flagged up an issue that concerns many small businesses – how do you manage a poorly performing employee without crossing the line into bullying or pushing the individual into going off sick, often with ill-defined ‘stress’.

It’s come into focus with the case of Diane Abbott, the Shadow Home Secretary. It’s been pretty clear to most people, including supporters of her own party, that she has had a disastrous election campaign, appearing not to know her own policies and struggling to answer basic questions. Given the importance of the role of Home Secretary – especially in the light of recent terrorist attacks – questioning her competence to do the job is legitimate.

But much of the criticism in recent days has been of a personal nature, and given that she is the highest profile black woman in UK politics there has been an undercurrent of racism and sexism to some of the criticism. She is, after all, not the only politician who has been exposed as not having a grasp of key policy details during the election campaign. The situation appears to have culminated in her going off sick for the remainder of the campaign.

Politics is not the same as business of course, and the dividing line between personal criticism and political division is blurred. But in the world of work, there’s also a danger that trying to manage poor performance can – deliberately or accidentally – move into the personal – which may lead to organisations facing discrimination or unfair dismissal claims.

So how should a small business manager deal with a similar situation?

Firstly – don’t avoid the situation. I often quote an Employment Judge who in a tribunal hearing, pointed out to the ex-employee that “it is the Employer’s responsibility and duty to make an employee aware if their performance is below the standards required”. Brushing things under the carpet makes it much harder to deal with things later.

Second – focus on the issues, not the individual. What exactly is it that is not being done correctly? Move from the personal “you’re hopeless at customer service” to the task “the wording of your email to this customer is unclear/antagonistic”

Thirdly – make it clear what improvements are expected, and by when, and outline what support you can give the person to achieve the required level of performance.

Fourth – don’t micromanage. Picking up an individual for every tiny error is not going to lead to an improvement, you’ll just end up shattering their confidence completely and ensure that they fail.

Of course, there are times when an individual employee is not up to the job and you may need to dismiss them as a result. But unlike politics, you should do this objectively and not on the basis of personal criticism and destroying their health.

Need to know more about this? You can find out more details here.

The “Headscarf Ban” – what it really means for small businesses

Today’s ruling by the Court of Justice of the European Union (CJEU) that employers can ban Muslim women from wearing headscarves has attracted a good deal of publicity and comment from both sides of the argument. But it’s important for small business owners to understand the implications of the decision before deciding whether or not they need to do anything at all about this ruling.

First – and probably the most important point – is that banning a Muslim woman from wearing a headscarf is not direct discrimination only if it is part of a policy that all employees are not allowed the “visible wearing of any political, philosophical or religious sign in the workplace”. In other words, such a ban must also prohibit, amongst other things

·         Wearing of a cross by a Christian

·         Wearing of a turban by a Sikh

·         Wearing of a Kippah by a Jewish man

·         Anyone wearing a t-shirt with a religious, atheist or philosophical message (such as this for example)

·         Rastafarians having dreadlocks

I’m sure you can think of others (wearing a poppy in the lead up to Remembrance Day for example?).  

But even if you want to introduce such a ban (and we’ll look at why in a minute) you need to beware that such a policy might be indirect discrimination – in other words a requirement which, although it appears to treat everyone equally, disproportionately affects one particular group. Indirect discrimination is permitted by an employer if it is ‘objectively justified by a legitimate aim”. In the cases before the CJEU, the court decided that a legitimate aim could be that a company wished to convey an image of political, religious or philosophical neutrality to its customers, but that the desire of  acustomer not to be served by an employee wearing a religious symbol (in this case a headscarf) would not be a legitimate reason.

So, having considered all this, and the potential for a legal challenge if you do implement a ban, why would you want to do this anyway? How business critical is it that you convey an image of “neutrality” to your customers? Is it so important that you wish to try and dictate to your staff what they can and can’t wear?  What happens if someone is wearing a headscarf as fashion accessory or for hairloss after chemotherapy, not for any religious reason? How do you distinguish?  As we saw last year with the “High Heels” issue, imposing arbitrary and unjustifiable dress codes can lead to a wealth of damaging bad publicity for the companies involved.

And we haven’t even considered the issue of whether this ruling will be binding on the UK after we leave the EU (given that a claim now would probably take more than 2 years to reach the Supreme Court) – I’ll leave that one  for legal bloggers and commentators.

As always, remember the two golden rules of Employment Law for small business

1.       Don’t believe anything you read about Employment rules in the Daily Mail

2.       Just because you can, doesn’t mean you should.

Note: Like everyone else commenting today, I’ve based this post not on a reading of the full legal judgment (which is not available at the time of writing) but on the CJEU press release, which can be found here. Should the full judgment contain anything different, I’ll update this post.

Doing the Deal

Recently, I’ve been attempting to read “The Art of the Deal”, published in the 1980s by a New York businessman called Donald Trump (wonder whatever happened to him?).  While it doesn’t contain any dramatic new insights into deal-making, it shows that the author does understand that to be successful in business, it is necessary to negotiate.

When the book was published, most HR professionals would have seen this as a core skill. Negotiating with staff, whether via unions or not, was a day to day occurrence and something that was an integral part of the job. HR people understood that the interests of employers and staff were not always aligned and that there needed to be an element of give and take on both sides. Hardline confrontational tactics might be used on occasion, but normally only if a red-line had been crossed (or if there were some hidden agenda at play).

These days, negotiation skills are very much a lost art. “Employee Relations” means, to many HR people, the ‘nuisance’ of dealing with an individual grievance or a disciplinary matter. If workers aren’t completely sold on the company’s mission, it’s due to a failure of our employee engagement initiatives and we need to redouble our efforts to get our happiness scores up.

The problem of course is that when a serious dispute occurs, HR professionals have no idea how to deal with it. Managers at Southern Rail decided that the best way to resolve their dispute was to troll their staff on social media in an attempt to bulldoze their position through. After a prolonged period of deadlock, the junior doctors dispute was only resolved when the arbitration service ACAS helped both parties to negotiate a deal (unfortunately, attitudes had become so entrenched by that point that the deal was later rejected, despite being recommended by the union).

So here are my “Negotiation 101” tips for any HR practitioner – before you even start a negotiation.

·         Understand that the other party has different objectives to you. What may seem a ‘logical’ argument to you may cut no ice with them

·         Be clear about what items in the negotiation are tradeable and what are not (your ideal, realistic and fall-back positions). You can’t have your cake and eat it!

·         Anticipate what the other party may want, and the arguments they may use – and then develop counter-proposals

·         Aim for a win-win – something which allows the other party show they have gained something for concessions they may have to make.

And when you get there, listen. Half the skill of a negotiation is understanding when the other party might be willing to discuss a tradeable item.

It may be a little more time-consuming than the current approach of what “management says goes” but it will be far more effective. Just ask Donald…

Culture eats “Banning things” for Breakfast

Today, the Women and Equalities Committee of the House of Commons has published a report outlining the urgent need to reform the law on pregnancy discrimination, including the need for a “German style system” (a phrase which as unfortunate echoes of the “Australian style points system” on immigration) to make it harder to make women redundant during pregnancy or maternity leave.

The report is laudable in its aims and timely in its publication but (a little like Karl Marx) it draws the wrong conclusions from its analysis. It’s reported major conclusion is the lazy politician’s “We don’t like something – let’s ban it”.

UK employment law is absolutely explicit on the issue of pregnancy. It is automatically unfair to dismiss a female employee if the reason is because she is pregnant, has given birth recently, is breastfeeding or is on maternity leave. Women have an absolute right to return either to their own job or one of the same status, terms and conditions after a period of maternity leave. And in a redundancy situation, women on maternity go to the top of the queue in terms of redeployment (probably the only situation where employers not only can, but must, positively discriminate).

Where the system does let women down is that, if an employer does flout or ignore the law, the Employment Tribunal system has been priced beyond reach for most women (in fact most employees of either sex) to seek redress – allowing bad employers to continue to behave in this way. To be fair, this is something that the report does recognise. Reforming the tribunal fees system so that employees could access justice would be a quick and easy win (and also benefit good employers as I suggested here).

Much, much more important than that though, is a need for a change in business culture. Instead of seeing pregnant women as a “problem” we should take at a positive approach to the situation. We talk a lot in HR about things like retaining talented employees, flexible working and workforce development. It’s time we started putting some of that into practice. And if we want to encourage women back into the workforce, we need to be positive about making sure that fathers are involved in childcare, utilising things like the already existing Shared Parental Leave rules. And while we shouldn’t fail to recognise that – especially in a small business – losing a key employee for up to a year can cause problems, it’s not as if babies are a new thing or that we don’t get plenty of warning (and hence time to plan).

Culture change does take time – and businesses can’t solve all society’s issues. But HR can start the process of creating a different business mindset. And until the mindset is changed, changes in the law will not have the desired effect.

Caveat Recruiter

Aspiring Conservative leader (and potential Prime Minister) Andrea Leadsom hit the headlines last week when she was accused of exaggerating her CV, suggesting that she had undertaken more senior roles than she in fact had.

It’s a problem that many businesses – large and small – face in recruitment. How reliable is the information contained in a candidate’s CV?

Most small businesses are unlikely to have the time, or resources, to undertake full background checks on potential candidates. And indeed it hardly creates trust between you and your potential employee if you feel you have to verify every aspect of a candidate’s career history. Having said that, a quick comparison with their LinkedIn profile might be useful!

Clearly, if you discover that a candidate has lied outright (claiming they have a qualification they don’t, or worked in a role or for a company they didn’t) you can withdraw a job offer or even dismiss after they have started.

But in most cases, it will be that a candidate has perhaps oversold their experience. What to do then?

It’s worth remembering that a CV is a marketing document. It is the person’s attempt to impress you as their potential new employer, so it’s understandable that they will want to put a positive spin on their achievements. After all, you don’t put in your brochure or website things like “our products are pretty good but battery life is better in our competitors” And it’s also a fact that individuals and their employers will often collude to make job titles sound more important and prestigious. “Senior HR Executive” implies there are more junior ones when in fact there may not be!

It’s a further reminder that recruitment should be a rigorous process Use interviews to test out the claims in detail. Everyone will accentuate the positive, but good questioning techniques (not this sort of nonsense) and effective listening will allow you to get a better picture of the candidate in front of you and what they actually have done. And you can then decide whether they have broadly the right skills and experience for the role or if you’ve been seduced by their marketing skill!

After all, we don’t complain about advertising unless it’s deliberately misleading; treat your candidates’ CVs in the same way.

 

What would you do if you found you employed a porn star?

The heady combination of sex and employment law much beloved by the press came to the forefront in a recent case involving an NHS worker who claimed unfair dismissal after her bosses found out she appeared in pornographic movies. Although the judgment in the case is still awaited, it does raise a lot of questions about how far an employer can go in regulating the behaviour outside work of employees.

The simple facts of the case are fairly straightforward. Ms Molloy was employed as a medical secretary to an NHS consultant. Although she would have access to a lot of patient information, she would rarely deal with or be seen by patients – it was purely an administrative role. There appears from the press reports to have been no issues with her work.

However, outside of work, she appeared in a number of pornographic films and apparently also advertised what are referred to variously as “kinky adult services”.

No-one in the Trust was apparently aware of this until it was brought to their attention by another employee (whom a number of press reports refer to as a “whistleblower” although it’s doubtful whether reporting on a colleague’s legal out of work activities would necessarily be covered by the whistleblowing protections).

Following this information, Ms Molloy was allegedly given a “resign or be dismissed” ultimatum.

So – were Ms Molloy’s activities outside work any business of her employer?

The Trust appears to have relied on two aspects – that she had breached their policy on second jobs, and that her behaviour had brought them into disrepute.  I wrote about how to deal with employees who have more than one job here, and it’s difficult to see how having a non-health service job in her own time would cause a problem (especially since in the NHS many senior professionals have second jobs) . At worst, it might be a warning for failing to notify them.

So did her behaviour bring the NHS into disrepute? She wasn’t patient facing, and it appears that her activities had been going on for some time without attracting any notice (which given that online porn is easily available is quite surprising).  Was the trust’s reputation damaged by being seen to employ her? Would the press have made anything more of the issue than they have done anyway, had they somehow got hold of the information sooner?  Or would public confidence be damaged? It’s interesting that in an admittedly unscientific newspaper poll, an overwhelming majority felt she should not have been dismissed (a suspiciously convenient 69%!)

Of course, many people find pornography distasteful, immoral or demeaning to women. But is a personal moral opinion grounds to sack someone doing something that isn’t illegal? In employment terms, you’d really need to show that continuing to employ the person was causing significant damage to your business to justify dismissal – was it within the range of reasonable responses to the issue? It might well be a case of “Some other substantial reason” if this were the case.

The World’s most expensive training course?

Like many football fans, I watched events at Old Trafford yesterday – where the match was abandoned before kick-off after a “suspect device” was found in the stadium – with initial concern, followed by relief that the incident appeared to be a false alarm, and finally a degree of amusement when it was revealed that the mysterious package was in fact a dummy bomb left over from an exercise to train sniffer dogs in the ground several days previously. Several comments on social media at the end of the day expressed the view that they hoped the individual(s) responsible to be fired this morning.

But if your staff were responsible for such an incident, would you be considering dismissing them today? After all, we all like someone to blame, and there’s no doubt that the incident caused massive inconvenience to a lot of people. Indeed, local politicians seem to have jumped on the scapegoating bandwagon

But consider it this way. That error gave the emergency services the best way of testing their disaster plans in the event of a suspected bomb. They successfully evacuated 75000 people from the ground, put in place public transport plans to get them away from the area, and ensured that everything was done without panic or problem. But I’m also sure that they will be reviewing today what worked less well and making changes to resolve problems.

No matter how well planned your training, people will always behave differently when they think the event is actually happening (compare what happens during a planned fire drill and how people behave when they think there is real fire). So rather than blame, we should consider yesterday as a very high profile learning experience. The individuals concerned with leaving the dummy bomb behind will never again forget to carry out basic checks, while the emergency services will probably never have a better opportunity to safely test their procedures in a real life situation.

So blame, or thanks? Which would your company go for?