Free article: Dealing with underperforming staff

Published: Thursday, 13 February 2014
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Sarah Glockler explains why following the correct disciplinary procedures can help you avoid expensive and time-consuming legal action.

Summary

  • It is important to deal with any concerns you have with your employees, whether that relates to their performance, conduct or capability.
  • It is always useful to hold appraisals on at least an annual basis where you can review all aspects of an employee’s performance.
  • The most common problems that arise in the workplace are related to misconduct or poor performance.
  • Examples of misconduct are poor attendance, rudeness and discourtesy to colleagues and managers, failure to follow reasonable instructions, using work time to do personal tasks and failure to follow employer’s policies.
  • If an employee’s conduct or performance is not of an acceptable standard, you should commence a disciplinary procedure.

It is important to deal with any concerns you have with your employees, whether that relates to their performance, conduct or capability.  It is always useful to hold appraisals on at least an annual basis where you can review all aspects of an employee’s perfor-mance. This should be done in an open and frank manner; employers should not be afraid to be honest with employees and highlight their concerns. Most issues with employees arise due to poor communication in the workplace.

When problems arise

If you have got to the unfortunate stage of having concerns about an employee, it is absolutely crucial that you deal with this in a fair and reasonable manner and that you follow the correct procedures. Failure to follow the correct procedures can result in claims being filed at the employment tribunal, which can be expensive and time-consuming to deal with.

Employment tribunals are designed to be accessible by lay people. In addition, legal expenses insurance and 'no win, no fee' arrangements are also often available, which means that employees often do not have to pay legal advisers to take their case to tribunal.

This means that if an employer has to defend a claim they will be put to a lot of expense. Even if an employer successfully defends a claim, they generally have to pay their own legal costs. These costs can be in the region of £15,000 to £20,000 or more in cases involving discrimination claims. 

In order to avoid the time and expense of tribunal claims, therefore, employers are often put in a position where they have to reach an out of court settlement.

Employment rights

All employees are entitled to the following:

  • a contract of employment after two months of employment which sets out their pay, holidays, hours of work, other benefits and details of disciplinary and grievance procedures
  • to be paid at least the national minimum wage
  • pay statements
  • not to be discriminated against for reasons of sex, age, race, disability, sexual orientation, religion or belief.

What sort of problems may arise?

The most common problems that arise in the workplace are related to misconduct or poor performance.  Examples of misconduct are poor attendance, rudeness and discourtesy to colleagues and managers, failure to follow reasonable instructions, using work time to do personal tasks and failure to follow employer’s policies.

Another concern for employers is the use of social media. There has been a large increase in people using social media in recent times and this has led to claims related to the use of social media during working hours and employees posting derogatory comments about staff, patients or their employer on social media sites such as Facebook.

In addition to following the correct procedures for dealing with disciplinary matters that are set out below, it is imperative to have an internet and email policy. This is so that it is fair to dismiss an employee who has misused the internet, email or social media.

These problems result in the most common claims that are issued at the employment tribunal, which are unfair dismissal, unlawful deductions from wages and breach of contract.

Who can bring a claim for unfair dismissal?

Any employee who was employed up to 5 April 2012 must have completed one year’s service before they are able to bring a claim for unfair dismissal. Any employee that was employed on or after 6 April 2012 must have completed two years’ service before they are able to bring a claim for unfair dismissal.

It should be noted that these qualifying periods do not apply if the employee has a claim for discrimination or any other dismissal where the reason is an automatically unfair dismissal.

Avoiding an employment tribunal claim

Follow the correct procedures! If an employee’s conduct or performance is not of an acceptable standard, you should commence a disciplinary procedure. This should be done in accordance with the disciplinary procedures set out in their contract of employment; if there is no procedure set out in a contract or in a staff handbook, you should follow the Advisory, Conciliation and Arbitration Service (ACAS) Code of Practice on Discipline and Grievance.It is very important that every stage of a disciplinary process is documented; this includes writing to employees about meetings and making notes of the meetings. If you issue any form of warning to the employee, this must also be confirmed in writing.

It is crucial that you act in a fair and reasonable manner. Even if you believe an employee has committed an act of gross misconduct, you must not dismiss them without following the correct procedure; otherwise the dismissal will be procedurally unfair.

Although the ACAS Code is not legally binding, if you follow it you are less likely to receive a claim; if you do receive a claim, an employment tribunal will consider whether you followed the procedures set out in the Code. If an employer has unreasonably failed to follow the ACAS Code, the employment tribunal can increase any award of compensation by up to 25 per cent.

In most cases, you can avoid a claim if you follow the right procedures. It is strongly advisable to take legal advice before you commence any type of disciplinary procedure and certainly before you dismiss an employee. Prevention is cheaper, less time-consuming and less stressful than being involved in an employment tribunal claim.

Toolkit

Use the following item in the Toolkit to help you to put the ideas in this article into practice:

About the Author

Sarah Glockler is a senior employment solicitor at Teacher Stern LLP, a London firm which provides a high-quality commercial legal service at competitive rates on all aspects of property, corporate and commercial, litigation, private client, business, immigration and employment matters. Tel: 020 7242 3191, email: This email address is being protected from spambots. You need JavaScript enabled to view it., website: www.teacherstern.com.

First published in Issue 1 of Dental Practice Manager magazine.

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