Dealing with and removing the difficult employee

How to handle an underperforming or troublesome employee is a perennial problem for all employers. But how many practice managers, clinical directors and business owners feel confident about the legal requirements to ensure a dismissal is fair?

Many practice management staff are particularly fearful of tackling underperformance issues, finding it difficult to manage those who have a negative impact on others, or are perceived to be “unmanageable”.

Stephenie Malone, a specialist healthcare employment solicitor from Harrison Clark Rickerbys, explains the truths behind the legal requirements to enable your practice to get the dismissal process right.

Be brave!

Some challenging behaviours from colleagues are so extreme that hoping they will change without prompting is not an effective strategy. Behaviours that go unchallenged simply because they are difficult contributes to poor morale, decreased performance and increased staff turnover. This can expose a practice to the risk of Employment Tribunal claims.

Tackling bad behaviour and poor performance is a key component of the productivity of your practice. Inaction will not resolve the problem. Inertia and apathy mean it can spread to other members of the practice team and, over time, it can become part of the practice culture.

Showing confidence in decision making with employees encourages respect for your practice management team. Taking a firm yet fair approach to staffing issues will embolden management to act with appropriate assurance and displays confidence that they are equipped to deal with tricky situations.

The message will quickly be deciphered by the wider practice team that poor behaviour, conduct and performance will be challenged and appropriately addressed.

So, what are the key considerations for management seeking to take disciplinary action which may lead to a dismissal?

Who is eligible to bring a claim?

Employees only

It is only employees who are protected against unfair dismissal.

The eligibility to bring an Employment Tribunal claim does not apply to independent contractors or self-employed workers, or workers. For those non-employed staff at the practice, you can terminate their engagement (subject to the provisions of any contract you have in place for their services), without the repercussion of unfair dismissal litigation.

Do exercise caution in respect of anyone who, although labelled “self-employed” or “worker”, could have grounds to challenge their employment status. If they can satisfy the legal tests that they were an employee they can bring an unfair dismissal claim. Consider this before terminating their engagement. If they can assert the ending of their relationship with the practice was on discriminatory grounds, they can bring a discrimination claim under the Equality Act 2010 as a non-employee .

If you are concerned about employment status, seek legal advice before ending the working relationship.

Qualifying service

Employees gain the entitlement to bring an unfair dismissal claim after 2 years’ service with their employer .

Before the second anniversary of their employment is reached, an employee is only be able to claim unfair dismissal in very limited circumstances, for example if the dismissal was linked to trade union activities, pregnancy-related, or they were asserting a legal right.

It is important to note that employees do not need to have obtained two years employment in order to bring a discrimination claim. It is a “day 1” employment right.

Fair reasons

In order to fairly terminate employment, the decision to dismiss must be based on one of following fair reasons:

1. Conduct
2. Capability
3. Redundancy
4. Illegality (e.g. the absence of legal requirement for their role such as a driving licence, or a work permit)
5. Some Other Substantial Reason (a general “catch-all” often used for a cumulative set of circumstances or a fundamental breakdown in trust and confidence in the employee’s ability to perform their role or in the employment relationship).

The majority of employers rely upon grounds of conduct or capability as their fair reason for dismissal.

Conduct

Employers often perceive that a dismissal on grounds of conduct must arise from a one-off act of extreme misconduct.

It is entirely legitimate to dismiss for a cumulative series of acts of more minor misconduct, which can be used to evidence a pattern of repeated poor behaviour which does not improve despite the issue of disciplinary warnings.

Misconduct Examples

Misconduct

• Minor breaches of contract
• Persistent lateness
• Unauthorised absence
• Timewasting
• Excessive use of mobile telephone or internet

Gross Misconduct

• Theft or fraud
• Physical violence
• Gross insubordination
• Gross negligence
• Unlawful discrimination or harassment

When seeking to rely on a series of disciplinary warnings for escalating or repeated misconduct, ensure that the previous warnings have not expired.

Make sure any previous warnings are reviewed so the employee is clear those warnings have been taken into account. Likewise, expired disciplinary warnings should be disregarded.

At each stage of the process it should be made clear that should the misconduct reoccur, it could lead to further warnings, which may ultimately result in dismissal.

This is contrasted with gross misconduct, where the conduct is serious enough to dismiss the employee immediately (as long as a fair procedure is adopted).

Many employers prefer to suspend an employee accused of an act which is likely to amount to gross misconduct. Commonly the suspension will be on full pay whilst an investigation into the allegations takes place.

Suspension can enable the investigation to take place without the complication of the employee being in situ, and may encourage other employees to come forward with evidence. It can also reduce the risk of the suspended employee destroying key evidence within the workplace.

However, Tribunals are increasingly concerned about the use of suspension as a knee-jerk reaction to any act of misconduct. Accordingly, it should be used in only the most serious of circumstances.

Employees – and their colleagues – often view suspension as a punishment (rather than a neutral act). The stigma of suspension, even if exonerated, can “cast a shadow” over the employee’s competence and conduct and can make the return to the workplace more upsetting and stressful for the employee.

If the decision is taken to suspend, it should only be for as long is as necessary for a thorough investigation to take place. The suspension should be reviewed regularly and managed.

Capability

Capability dismissals arise from underperformance – either in the aptitude to carry out the job or ill health reasons meaning the performance of the position is not achievable.

Managing a capability process usually requires a series of meetings with the employee; the purpose being to establish the root cause of the capability issue, to gather evidence of underperformance, and to set performance or attendance targets.

Aptitude

For performance aptitude matters, a process should be adopted that incorporates

• Highlighting performance concerns;
• Defining the level of improvement required;
• Setting specific improvement criteria targets;
• Deciding an appropriate timeframe for the improvement and review intervals;
• Undertaking reviews with the employee and collating evidence (by manager and employee) to demonstrate improvement – or a lack of.

At the conclusion of the review period, the manager decides the outcome:

• If the performance improves to the desired level, cease the performance management process.
• If the improvement is not adequate, consider issuing warnings, which may culminate in dismissal if no improvement – in which case, refer for consideration under a formal disciplinary process.

Health

Where the capability concern arises from a health matter, dismissal should be the last resort.

To minimise the risk of a claim for unfair dismissal and/or disability discrimination, first focus on any steps to remove any barriers to the employee satisfying the desired performance levels and/or helping the employee back to work.

To assess the performance concerns of an employee arising from ill health, firstly obtain an indication of diagnosis and prognosis by:

• obtaining a medical report from the employee’s GP (or specialist) with the employee’s permission – the employee also has the right to see the report before the employer does;
• arranging an occupational health assessment – usually at the cost of the employer. Your contracts of employment may stipulate that the employee must comply with a request for them to attend.

This information will enable the employer to establish whether or not the employee is disabled.

The Equality Act 2010, sets out the requirements for employers of disabled employees to consider “reasonable adjustments” to address any barriers to performance of their role .

This obligation only applies in respect of disabled employees, so determination of whether the employee satisfies the legal definition of disabled is a primary consideration.

Tribunal awards for disability discrimination can be significant as they comprise loss of earnings as a result of termination of employment (as is the case for unfair dismissal) and an element of injury to feelings compensation.

If following assessment of the situation, the employer concludes the employee cannot perform their job because there are no reasonable adjustments that can be made, it may be fair to dismiss, even if the employee is disabled.

Given the implications of the decision, careful consideration to the situation and thorough evidence gathering is essential to minimise the risk of Employment Tribunal claims.

Fair process

Whenever conducting a disciplinary process, particularly where the outcome may result in dismissal, it is essential to demonstrate the action taken by the practice was fair and reasonable. In capability matters concerning health, act with particular sensitivity and confidentiality.

The starting point for any disciplinary process is to follow the requirements of the Acas (Advisory, Conciliation and Arbitration Service) Code of Practice , which provides the minimum requirements for a disciplinary process. Whether or not an employer has complied is taken into account by Employment Tribunals hearing unfair dismissal claims.

1. Employees have the right to be accompanied (by a colleague or trade union representative) to all disciplinary meetings.
2. Ensure that appropriate, thorough and reasonable investigation has taken place into the allegation and evidence gathering before convening the disciplinary hearing. If needed, conduct an investigation meeting with the employee before deciding whether to advance to a disciplinary process.
3. Take and retain notes of all meetings and give copies to the employee. A recording and/or transcript are not legal requirements, but may be agreed if appropriate.
4. Invite the employee to a disciplinary meeting to discuss the issue and set out the allegation details in the invitation. If you are relying on documentary evidence, provide this in advance so the employee can prepare adequately.
5. At the meeting, invite the employee to explain their response to the allegations and present their evidence.
6. If necessary, adjourn the meeting to investigate further, and then reconvene the hearing, again having issued any new evidence to the employee.
7. Once the evidence has been presented, adjourn the meeting to decide the outcome, including whether each allegation are upheld entirely or partially. Consider the range of disciplinary sanctions available and appropriate, taking into account comparable disciplinary incidents which have arisen and the sanctions issued.
8. Notify the employee of the outcome and decision making rationale.
9. Offer the employee the right of appeal.

It is important to recognise that different circumstances may necessitate slight variations from these procedures. What is fair and reasonable will depend on the individual circumstances of every situation.

In addition to the reasons for dismissal and the procedure adopted, Tribunals will also take into account whether the decision reached by the employer was within the “range of reasonable responses” a reasonable employer in those circumstances and in that business might have adopted. This is an objective test, so the Tribunal cannot substitute its own view for that of the employer.

If you would like further information about the HR and employment law issues surrounding dismissing an employee, please contact Stephenie Malone (Senior Associate Solicitor – Healthcare and Veterinary Specialist) at Harrison Clark Rickerbys solicitors.