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June 9, 2020

employee absent

Our client had an issue with a difficult employee who was causing problems within the team, but they were finding it difficult to identify exactly what the employee was doing wrong, and they did not know how to deal with this?

After looking at the case we identified two main issues.

  • The employee was buying personal items on the company’s accounts without permission;
  • Incompetence in their role

Solution:

The client had no policy in place covering the use of the company’s account. Unless there is a policy in place saying that staff shouldn’t do this, or documentation saying they’ve previously been told not to do this, they’re likely to refer to 'custom and practice' - specifically that previous managers no longer with the company said it was OK. This is difficult to disprove as the former managers are no longer there.

We recommend that our client should meet with the employee and set out the expectation that going forward this will must not continue. They should also advise the employee that there would be grounds for disciplinary action if they continue to use the account without permission.

We established if the problem was either a capability or performance issue – i.e. the employee can’t do it because they don’t really know how, or their knowledge is out of date and needs additional training - OR do they know what to do for each action but for some reason have chosen not to do it or can’t be bothered doing it/checking it? In this case, you would be dealing with a conduct/disciplinary issue. It may even be that it’s a bit of both.

We advised our client to meet with the employee informally to discuss the issues and to set out their expectations and advise the employee that they would be monitoring their performance. Our client also advised the employee that if there is no improvement, formal action might be taken. Our client was advised to ask the employee if they had any training needs or any other issues that was affecting their performance.  We advised that a further meeting should be held in two weeks’ time: this will allow time to build up evidence of any issues identified, the feedback given, the support offered, and the expectations set. 

Our client felt that the employee was not doing their work but was passing it off to others, we advised that they should be keeping a log of the work they’ve done which would be reviewed it as part of their performance management.

Outcome: 

The client introduced a new finance/expenses policy that clearly set out what financial conduct is and isn’t acceptable.  This was then incorporated into a new Employee Handbook that was communicated to all members of staff, not just the individual.

Our client knew the employee was making mistakes but could not produce evidence.  All examples of poor performance must be recorded and discussed with the employee to allow them to understand that this standard of performance is not acceptable and to give them a chance to receive either coaching and/or training to help them improve.

Again, we recommend introducing both a capability/performance policy and conduct/disciplinary policy to make sure these are fit for purpose before our client started considering taking any action.

We advised them of the position if the employee had more than two years’ service, they would be able to claim unfair dismissal if subsequently dismissed, saying no one had any issues before you, etc. 

During this process our client signed up to our monthly Standard contract and took advantage of our employee protection indemnity policy.

Our client followed their disciplinary process, along with our advice, and concluded, after holding a series of meetings with their employee, that the issue was indeed one of conduct rather than performance.

They eventually dismissed the employee for gross misconduct.  The employee raised proceeding at an Employment Tribunal for Unfair Dismissal.  Our client was supported at this Tribunal by our legal representative, all costs were met by the indemnity policy.

The claim for unfair dismissal at the Tribunal was dismissed and was deemed to be fair.

Learned

This case was a classic example of the problems that employers can face if they do not have proper easily understood policies in place that clearly set out the rules that their employees must follow.

 

In this case, any employer needs to make sure they have strong evidence in writing for all decisions and be able to show they have given the employee the opportunity to improve.

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