Tag Archives: dismissal

Managing a poor performer

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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.

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

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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.

*Update Sept 2016 – Ms Molloy’s claim was successful, primarily on the grounds that the Trust had failed to follow any real procedure, although the judge felt that the disrepute issue would have potentially been a fair reason had they dealt with matters correctly.

The World’s most expensive training course?

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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?

 

When something unfair can be fair

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Many small employers – and indeed employees – struggle with the concept of “fair dismissal”. In a way it’s not surprising, since fair in employment law terms means something different to fair in ordinary language. I’ve discussed before exactly what it means here and here, but when dismissal is combined with the strange legal term “some other substantial reason” it’s not surprising that people’s heads begin to spin.

Thankfully, we have a great example today of a real-life case where two of these legal situations apply – and it’s a situation I’ve encountered several times with clients and is always fraught with difficulty.

The company did sub-contracted work for a much bigger organisation. As part of one contract they had an onsite manager.  The client wasn’t happy with the performance of the contract and demanded that the company bring in a new manager. The company asked for time for the existing manager to try to improve things but the client was insistent.

The company then had a problem. They had an employee who had no job, and despite their efforts they did not have an alternative role for her that matched her skills and status. They did offer her a job on lower pay which she turned down. She wasn’t redundant however, as her job still existed, and because they had never discussed performance issues with her, the company had no grounds to dismiss her for this reason. Indeed, until the client raised it, they weren’t aware that there were problems with the contract.

They decided that they had no other option but to dismiss, using the “some other substantial reason” as their justification. The client did not want the employee on their premises and the company didn’t have another job for her. Quite understandably, the employee claimed unfair dismissal. She lost however because the tribunal ruled that the company had both a fair reason (she could not work on the contract she was employed on because the client didn’t want her) and they had followed a fair process (looking for alternative jobs). The tribunal did recognise that the situation was “unfair” to the employee in the normal sense of the word – and many would sympathise with her position –  but her employer had behaved fairly and legally.

It’s worth remembering that such cases are often good and easy to understand examples for small employers – and they also help to banish the myth that “tribunals are biased in favour of employees”.

Let’s Settle This (Part 2)

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In my last post, I looked at when a small business might want to consider a Settlement Agreement. This follow up post looks at some of the practical issues when discussing an agreement.

The first thing is making the initial approach to the employee. Some people find this quite difficult to do but often – especially where there is a clear dispute – the employee may well be expecting you to say something. It’s important that at this early stage you simply talk about the principle of coming to an agreement, rather than jumping in with an immediate offer.

Follow this up in writing – confirming that you consider your discussion a protected conversation under the Employment Rights Act. This means that any discussions will not be admissible* if things break down and you do end up with a Tribunal Claim. (*Unless in the course of the discussions you say something as stupid as “I’m only getting rid of you because you’re pregnant/gay/Muslim” etc, or try to bully or harass the individual, in which case they can be used in support of a claim). You may also want to add the words “Without Prejudice” to any letter/email although strictly speaking these words only protect lawyers.

Think about the offer you are going to make. The individual is signing away legal rights so will expect something more than their basic contractual payments. Like any negotiation, consider your opening offer and what you are prepared to go up to. Remember also that negotiations break down it may be 6-8 weeks before you can justify dismissal so you’ll be paying the person for this long anyway – so an additional cash amount might be cost-neutral. You can also think about whether there are any non-financial benefits you can offer – a good reference for example. Try to avoid thinking in emotional terms “I don’t want to give this person £££” and look at it commercially

It’s also now “expected” – though you don’t legally have to do it – that the employer will make a contribution towards the employee’s legal fees. The amount is usually fixed, but in my experience will depend on the particular solicitor – one of the advantages of the north of England is that they are often cheaper!

Finally, remember that the agreement is voluntary – you or the employee can walk away at any point and if this happens then you continue as if the discussions had never taken place. This might mean restarting a performance or disciplinary process.