Welcome to this two minute HR blast. In a previous Blast we have looked at how you can manage under performing staff with very short service. This time we look at the complex issue of managing the performance or behaviour of those who already have 10 or 15 years’ service. ‘Awkward’ is an understatement for how it can sometimes feel!
Many organisations believe that if someone has 10, 15 or even 20 years’ service, that they no longer have the right to manage poor performance or minor misconduct. This is incorrect.
Often though we have clients phone our advice line saying that they have a long serving employee who has been difficult for years, but now they have had enough and how can they discipline them or move them out.
You might wonder how it can take an employer 10+ years to work out that someone is not doing a great job. It’s simple really and can be down to one of a number of reasons, none of which you need to feel bad about:
- A previously good performing employee is now not performing so well,
- A previously good employee has been over promoted and as a result is now under performing and increasingly disengaged with their work,
- Someone with a bit of a bad attitude, but who has gone under the radar for years has now come to the attention of a manger who believes in managing issues rather than letting them lie,
- The organisations decides to take a tougher line and come down harder on those who are not performing to the right level,
- There has been a final straw moment when the employee just pushed the boundaries too far.
A few decisions:
- Are we talking about performance or are we talking about misconduct? Performance is something not usually in their control (e.g. over promoted, a role not fitting with their skill sets), whilst misconduct is definitely something in their control. (e.g. bad attitude, bad language, poor work ethic, long lunches, bullying colleagues or belligerence with manager)
- Are we at the ‘point of starting to manage them’ or have we reached the ‘point of no return’?
- Is there a genuine desire across the senior management team to tackle this issue once and for all or will you start and then stop, if the employee starts to kick back?
What you can’t do if you have someone who has been under performing for years or otherwise getting away with poor behaviour for years is simply ‘hit the wall’ with them. You can’t say ‘my office now’ or ‘here’s your P45’. Tempting that might be sometimes, but you just can’t do it – or at least not without enormous risks!
You also probably shouldn’t just send out a formal letter inviting them to a disciplinary meeting if that is going to completely come out of the blue for them.
Instead your first step is to invite them to an informal meeting that is outside your disciplinary procedures.
This is a meeting to:
- set out what your concerns are
- provide specific and clear examples of why you have those concerns
- explain what level of performance or standard of behaviour is required going forwards
- hear what they have to say about their performance (or behaviour) and understand their initial reaction to, and thoughts about, your comments
No need for:
- a note taker in this meeting
- written invite to the meeting
- advance notice to be given
Assuming just one conversation doesn’t dramatically improve the situation (it has been known to, so do not underestimate the value that first informal meeting can have) you now need to progress to a formal meeting.
Time gap between two? Reasonable! What does reasonable mean? Good question! Here’s a guide:
- If it’s poor performance that hasn’t been managed for 10 years you need to give at least one month for them to have a go at turning it around before escalating things to a formal meeting.
- If it’s misconduct, then you can expect an immediate change and if that isn’t forthcoming, invite them to a formal meeting the next day if you like. (Giving at least 48 hours’ notice of the meeting. Their letter should also include their right to postpone for up to 5 days if their chosen companion isn’t available immediately).
If though, all you want to do is stamp your foot out of sheer frustration and make them go away so you can get on with your job, you have two options:
- After your informal meeting, or in the following few days, offer them a Settlement Agreement.
- After your informal meeting, or in the following few days, have a Without Prejudice discussion.
And the difference between the two?
- In the UK there is no longer a requirement for there to be a clear dispute between two parties for an agreement to be offered without the danger of you then being on the receiving end of a constructive dismissal claim.
- You should offer a Settlement Agreement in accordance with section 111A of Employment Rights Act. The letter you give them must state this.
- Any discussions you have in relation to the Settlement Agreement will be protected which means that the employee cannot then use what you say in a tribunal or in claiming unfair or constructive unfair dismissal.
- A Settlement Agreement is possible PROVIDED there is no type of discrimination involved (e.g. age, sex, race etc.).
Without prejudice discussion
- To say to an employee you wish to have a Without Prejudice Discussion, you must be able to demonstrate that there is a clear dispute e.g. grievance raised, verbal complaint, appeal against disciplinary action etc.
- Any issues brought up in discussion will be protected which means that the employee cannot then use what you say in a tribunal or in claiming unfair or constructive unfair dismissal.
- These discussions can take place even if discrimination issues are involved.
How Much to Offer?
- If you want to move an employee out of the organisation via a Settlement Agreement or Without Prejudice discussion, you will need to incentivise them, usually via a financial offer.
- How long is a piece of string? Don’t be tempted to be over generous though. They can always negotiate you up, but once you have made an offer, it’s virtually impossible to then reduce it.
- One month’s pay isn’t uncommon. So if someone is persuading you it should be six, think again and don’t offer six unless there is a clear reason to do so.
- Depending on their contract you may be able to offer the monies as an ex gratia payment free of tax and NI which will obviously make the offer significantly more attractive!
- There is no need for it to be an amount similar to what they would have got if made redundant. This is totally different situation, so redundancy monies are irrelevant.
- If you are rubbish at negotiation, get someone else to negotiate with your employee for you. It’s important you get it right.
Oh and whilst we’ve set it all out as though it looks nice and easy above, managing staff and dealing with conflict is always difficult so whatever you do, take advice from someone who knows early on rather than after it has all gone wrong! There are a lot of procedural hoops you will need to jump through to make sure any termination is fair, if you miss any of the hoops it will leave you far more vulnerable and less able to defend any claim you may receive.
How can we help?
Interested in talking to Jaluch? We only support employers and have a lot of experience dealing with these types of difficult issues and are always happy to chair meetings or take notes for you in complex situations.
If you would like further training or support on this then Jaluch has four options for you:
- Read our eBook on Managing Performance – available from Amazon.
- Purchase one of our Bags of Learning on Managing Performance.
- Ask us to deliver training for your managers in Managing Performance and Managing Discipline and Dismissals.
- Alternatively, the Jaluch advice centre can support your managers and HR staff with any performance or misconduct issues you may have (no contract required).
Contact us for more information!
The information contained within this article is for general guidance only and represents our understanding of employment and associated law and employee relations issues as at the date of publication. Jaluch Limited, or any of its directors or employees, cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on all individual matters.