How Do I Tell My Employee How Annoyed/Worried I Am About their Work or Conduct?
Sometimes, things don’t go according to plan. Sometimes, it’s because someone has made a mistake, and sometimes it’s because someone has done something that is blatantly wrong.
What Can You Do?
Really, there are two options for business owners and managers:
Keep things informal, for example, by just having a chat with the employee to clarify what should have happened, as opposed to what did happen; or
Take a formal approach and place the employee on a formal procedure such as a disciplinary or capability procedure.
The Bigger Question is:
What Should You Do?
Keeping things informal
For the most part, no matter how irritated, angry, worried or frustrated you feel by your employee’s actions, most employees do not set out to let down or upset their employer.
With that in mind, if you think your employee falls into this category, i.e. they don’t make a habit of making mistakes, generally they are a good employee and try hard and, although things have gone wrong today, you’d be surprised if they repeated their behaviour after a chat, then the informal route is probably for you.
The informal approach you take is up to you. However, generally it’s a sensible idea to speak to the employee about the issue face to face as soon as possible. A conversation can go a long way towards clearing the air, understanding what happened and why and making it clear to the employee that it must never happen again. It also has the benefit of being straightforward (and therefore quick) to arrange - just invite the employee to a meeting. There are no formalities to follow, no procedure and the employee cannot make an appeal if they are unhappy with the conversation (although they could raise a grievance if they feel very wronged).
If you have an informal conversation with your employee, any employment lawyer would tell you that it would be wise to follow up with a record of the conversation in writing, either by sending the employee an email covering off the points you discussed, or by writing up a file note and asking the employee to sign it to confirm they have read and agree to its contents.
However, depending on the circumstances, you may feel that following up in writing could come across as too heavy-handed. Although it may help in terms of proving a record of a conversation, it may well not help in terms of ongoing employment relations with that particular employee.
While you’re pondering on where the balance is on whether to follow up with the employee in writing, bear this in mind:
IF IT’S NOT WRITTEN DOWN, IT DIDN’T HAPPEN!
This is not to say that your employee would suddenly deny all knowledge of the conversation having taken place. But if you ever want to refer back to the conversation, you don’t want to find you have different memories of what was said.
If you think there’s a chance you’ll need to speak to this employee again, or if it’s not the first time the issue has come up and you are beginning to develop some concerns about this particular employee, then you need to decide if there is more value to your business in keeping a record of your conversation than in worrying about coming across too strongly.
As I said, it’s not an easy balance.
The other important thing to remember about taking an informal approach is that it is just that, “informal”. Any note you put on an employee’s file will not form any part of a formal procedure. A record of a conversation could be used as evidence that next time around (if that happens) a formal procedure is the appropriate action, but that’s as far as its value goes.
A common mistake made by employers is to have numerous informal conversations with an employee about an issue that doesn’t improve, but without ever starting a formal procedure. It can reach the stage where, to the employer’s mind, the issue has been dealt with as far as possible, nothing more can be done and, frankly, they feel ready to move to potential dismissal, while in reality they are still at the very beginning of the formal procedure.
Other than in cases of gross misconduct, the Employment Tribunals generally expect to see that an employee has been given at least two formal written warnings in disciplinary or capability matters before facing the prospect of dismissal. This can be incredibly frustrating for employers who believe they have already been very fair, who are then forced to go through more conversations and chances to improve under a formal procedure with the employee, before reaching the stage where they can formally (and fairly) dismiss - don’t be this employer!
There’s nothing wrong at all with giving an employee a few informal chances if that feels like the right approach for your business, it’s good for workplace morale and general wellbeing. You don’t want your employees running scared over every little misdemeanour. However, you need a cut-off in your mind. If you find yourself thinking that the employee should only be given a couple more chances, start the formal procedure then, before you become frustrated!
With any luck the employee will improve, but, if they don’t, using the formal procedure will give your business more options over how to handle the situation.
Taking a formal approach
In my experience, when an employee is informed that they are to be dealt with via a formal procedure, they feel scared, worried and under attack. While placing an employee on a formal procedure can often be exactly the right thing to do, my advice would be not to be too trigger happy - satisfy yourself that a formal procedure is required.
This is generally an easier decision to make where the matter involves a clear disciplinary issue. If the employee appears to have done something that blatantly goes against your business’ values, it’s usually not too difficult to take the view they should be dealt with via a formal procedure. The decision gets harder where the issue is either minor, but annoying, repeat behaviour, such as regularly being late for work or a capability matter where the individual is trying to improve, but it’s just not working out.
If you find the decision on whether commencing a formal procedure is the right thing to do very difficult, you can take advice on this - lawyers often make good sounding boards, as well as being able to tell you how to get the procedure right, if that is what you decide to do!
If you form the view that you do want to follow the formal route, your first step should be to reach for your employee handbook.
(If you don’t have one, get one! All employers are required to provide certain information about their company and this is usually done through the employee handbook. In particular, you are specifically required to have a disciplinary policy. It’s also sensible to have a separate capability policy - otherwise you end up dealing with capability issues under your disciplinary policy, which can get very confusing and unhelpful).
In addition to your own policies, you should also refer to the ACAS Code of Practice on Disciplinary and Grievances and its related guidance notes (I’ve added a link to the end of this article).
Formal procedures need to be handled in the right way to ensure they are fair. However, this is particularly important where an employee who has already been issued with a final written warning needs to be asked to attend a further disciplinary or capability hearing.
By the third stage of a formal disciplinary or capability procedure there is a chance the outcome for the employee could be their dismissal. If they are dismissed and later opt to bring a claim against your business for unfair dismissal the focus of the case will largely be on whether the formal procedure you followed was fair. By fair, I mean that you followed your own policies and the ACAS Code I mentioned above.
There are two things to remember about the start of a formal procedure:
Before commencing a formal procedure you should thoroughly investigate the facts, to make certain that the “case” you intend to bring against your employee has some merit.
If you can, you need to keep the person who investigates the matter separate from the person who will conduct the disciplinary/capability hearing (they will also be the person who decides on a sanction, if one is to be issued)
There are a number of elements involved in following a formal procedure, so if you have any doubts, take advice. But, as a starting point, if you don’t properly investigate the matter and fail to pass the decision making role to someone who was not involved in the investigation, there is a good chance your procedure would be deemed to be unfair.
Although it may sound a bit extreme, a good analogy as to how things should work is the way the police and the court system work. The “police” is the person investigating the matter at work. The “judge” is an independent person within your business who was not involved in the investigation. If there is an appeal, the “appeal judge” is another independent manager within your business who is senior to the person who heard the first stage of the matter.
In smaller companies, the above arrangement can be a tall order. If you have only one or two managers in a business it can be very difficult to keep the decision-maker independent. This can be even more of a problem at the appeal stage.
If your business is on the smaller side, and you are worried about this being a problem, take advice on how to set out your disciplinary policy. Employment Tribunals do tend to give smaller companies some slack, provided they can see there has been an effort to be as fair as possible. A good start is having bespoke disciplinary and capability policies that address any adaptations that may need to be made to the “perfect procedure” from the outset.
And finally - don’t mix and match between formal procedures. A question that regularly comes up involves a situation where e.g. an employee has been issued with a final written warning following a series of issues relating to their capability, who then does something requiring formal disciplinary action (but which is not gross misconduct). The question is whether the disciplinary matter can be treated as the third and final stage of the formal procedure (which thus far has only related to their capability) - potentially leading to the employee’s dismissal. The brief answer is no! It’s not a sensible idea to dismiss for a different reason to the reasons given for issuing the two prior written warnings - it’s confusing and therefore unlikely to be fair.
If you are a bit tangled up in running a formal procedure, would like advice on how to manage something specific that has happened at work or would just like your employee handbook brought up to date, get in touch!
Ref:
https://www.acas.org.uk/acas-code-of-practice-on-disciplinary-and-grievance-procedures
