Pulling a sickie

In the days before stress, back injuries were often cited by the unsympathetic as the malingerer’s disease of choice because they were difficult to diagnose. Now stress tends to make employers eyes roll with disbelief when they see it on a sick note. I’ve lost count of the number of times I have heard an employer say I don’t want to go through a procedure because he/she will just go off with stress and I’ll be stuck.

Personally I’m not sure that people used these as an excuse for days off half as much as some employers would have you believe (24 hour flu was much more prevalent in my view). However, I have experienced people going off with stress when threatened with a disciplinary hearing, so it does happen.

The point is that if someone has too much time off work, you can dismiss them and there is nothing in law that says you have to keep employing someone who is not at work. It’s not a matter of whether their illness is genuine or not (and that is often very difficult to prove), it a case of whether the business can support a large amount of sickness absence.

Of course you have to go through some procedures and checks for example getting a report from their doctor or a specialist, and seeing if there are any reasonable adjustments you can make to make sure they can attend work (and the word is reasonable here). But if at the end of the day they cannot work for you in a reliable way you are perfectly entitled to dismiss them.

More importantly however is the reluctance to deal with a disciplinary matter because you think that the employee will just go off sick. First if they go off sick you merely start the procedure for dealing with sickness absence, which makes it clear to the employee that the issue will not just go away. But secondly you also demonstrate to the other staff that the problem you were dealing with was important and that as an employer you are able to ensure people work in the way you want them to.

If you employ someone whose absence record is causing you problems give us a call on 0161 851 112

Relationships and work

One of the unusual things about employment law is that it regulates a relationship that can be very personal. For example a good loyal member of staff may become a problem because they are not doing what you want them to do. Now this could be a performance issue, if they have moved to a new job for example. Or it could be the result of a previously good relationship breaking down. In these circumstances employment law is a lot more like family law than contract law. There are loads of reasons the relationship can go sour, sometimes it’s as small as forgetting to get this person an anniversary card even though you were an usher at their wedding, whilst at the same time remembering to ask a much shorter service member of staff how their son did on his first day at school.

Habits that you developed when dealing with someone as a receptionist may have a completely different meaning if they are the office manager. For example you may take a message and fill in the message book and the receptionist thinks you are just trying to save them some work. If you sort out a staff absence problem for a manager, you may be seen as undermining them. In both cases you may have been just trying to be helpful, but the results are quite different.

If you have a long standing member of staff who is just not coming up to scratch, it’s often worth finding out if, there are any underlying relationship issues before going down formal capability procedures. The formal route involves hearings and evidence and may just set everything in concrete, with the net result that you end up having to replace a perfectly good member of staff with a complete unknown. The point is that when family issues become difficult, applying the law usually means the position is irretrievable. This is often the case with employment relationships, once you go formal the die is cast.

Not in the right place

What do you do when you are talking to a manager about how you can help them do their job better and they spend 80 minutes of a 90 minute meeting in tears?

Clearly the opportunity to help them do their job is limited as in between the snuffles and sobs they tell you that everything is OK and in fact it’s getting better. Really, so how do you behave when things are really bad?

Well some people are just in the wrong job and for whatever reason they will not accept this. At this point the Directors have to take a hard decision. Problem is that if you are in one of the public sector arenas you have been tied down by endless procedures and policies that just prolong the torture. Plus if you go down the procedural route it’s quite likely that the manager will get combative and you not only have a performance problem, you also have a growing antagonism between the directors and their manager, not good for the organisation or for the rest of the staff.

Whenever I post something like this on Social media I am usually met with the response that  you can avoid problems like this by always treating people with respect, agreeing an “action plan”, reviewing it on a weekly basis, giving the person achievable targets and getting their “buy in” to the solutions orientated process that has been set up. All very well as long as you’re happy to ignore the staff that have to fill in for the underperforming manager while you go through this process – who are becoming increasingly frustrated by your lack of care for their predicament.

Getting the manager’s cooperation in working towards an “action plan” can be a good way to deal with things when the manager takes up the position; but most of the time we are brought in long after things have gone wrong. If you want to make an analogy, it’s a good idea to teach people how to swim when they are in a training pool and supported, if you see them drowning you don’t spend time coaching them, you pull them out of the water.

So in short as a director or senior manager you have to think of all your staff when dealing with issues not just the one who is having a problem, which sometimes means making hard decisions.

Hard Decisions and performance

Managing staff, especially if you are also running a business is never easy, but sometimes the decisions you have to take can result in putting someone out of work. An old management mentor of mine once said “the moment it gets easy to dismiss employees is the moment you should stop doing it”. Most people don’t enjoy conflict so they let things slide when it comes to employees especially if they work closely with the employee on a daily basis, and if they have known the employee for years it gets even harder.

The problem is over time the manager’s frustration grows with the poor performance or behaviour of the employee. The issue that finally causes them to act is actually quite trivial when looked at from the outside, worse still it seems trivial to the employee who has never had any inkling of there being a problem in the past.

I’m not advocating that every little thing is picked up by the manager and turned into an “issue”, it’s just that if work is not being performed how you want it to be, you should tell the person responsible and tell them how you want it done. Yes they may be a bit defensive at first but in most cases they will do what you want them to. If they don’t then it is clear that a more formal approach is needed. However in my experience most issues are dealt with by the initial chat.

A client who put up with someone who always made a meal of the morning tea and toast run to the local café, finally lost their patience when they were late for work after lunch and called me wanting to sack them immediately. I asked them that the first thing they needed to find out was why the person was late, but I also took them through the disciplinary procedure and what they needed to do if they wanted to give out a formal warning. They were all fired up to give the employee a good “going over”, but immediately felt deflated when the employee explained that the reason they were late was that they had been involved in an accident and the police had asked them to stay behind to give their details! (Yes I did advise them to check the story was true!)

After this any attempt to raise the issue of their work rate would seem churlish to say the least.

I used to start all new staff off with a list of the things I wanted them, to do and what I liked to see in my employees, then I told them what irritated me (mainly poor timekeeping and a refusal to accept responsibility for their actions). I also told them that now they knew what got up my nose, any transgression in these areas would be quickly dealt with. I would then make sure that either I or one of my assistants spoke with them every few months to tell them what we thought of them (and it was mostly good stuff). We rarely had performance issues after the first six months of employment as those who couldn’t do the job usually moved on.

Changes to Tribunal Rules – Early conciliation

New legislation comes into force on 6th April. The official title of it is ‘The Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014’-quite a mouthful but in brief the aim is to resolve as many employment disputes as possible without the need for an Employment Tribunal.

Anyone considering making a claim against their employer will be required by law to contact ACAS before they can proceed to a Tribunal. It will be a quicker, cheaper and less stressful way of resolving a workplace dispute.

As you probably already know, an employee has 3 months after the event they are complaining about to lodge a claim. When they contact ACAS , the clock effectively stops ticking for up to a month, with provision for a further 2 weeks if ACAS think the claim will be settled soon,  to allow time for the 2 parties to reach agreement.

If ACAS don’t think a settlement is possible they will issue an Early Conciliation certificate. This act starts the clock running again and confirms that the potential claimant has been through the required process. To lodge a claim at Tribunal claimants will need the reference number from their certificate.

The Early Conciliation service is free to both parties and either the claimant and/or respondent can decline ACAS’s services at any point. The ACAS conciliators are impartial and have up to date knowledge of the law to help to clarify the issues as soon as possible.

This legislation changes the rules relating to Employment Tribunals to facilitate the introduction of Early Conciliation.

It is hoped that Early Conciliation will save time and legal costs estimated at £64.6m a year and deliver a net benefit of £37m. There will be a further saving of £2.6m due to the impact of having fewer Employment Tribunal claims.

Please call if you have any questions .

Investigating misconduct- Making sure you’ve understood the situation

 

Keeping up with what your employees are doing and making sure they are doing what you want them to do is part of day to day management.

However what happens if you think someone is doing something wrong and you need it to stop? Well if it’s a minor problem just tell them (you know the kind of thing: Stop calling the customers “pal”, Stop turning up late, Don’t pick your nose when making an appointment for a patient).

But what if it is more serious and you need to take more formal disciplinary action even dismissing the employee?

Well for a long time it has been accepted that you need to carry out as much investigation as was reasonable in the circumstances  especially if you want to dismiss someone. The case that forms the basis for the way misconduct is handled dates back over 30 years and is often referred to in employment law as the Burchell v BHS case named after an individual who was dismissed from British Home Stores (I do wonder how Ms Burchell feels about being so “famous”).

However in recent years the hoops that an Employment Tribunal expects you to go through to establish your investigation was thorough enough have got more and more complex for employers. That is not to say it’s a good idea to allow employers to dismiss people on a whim (it isn’t good for the business either) but now it is less acceptable too combine the investigation meeting with the disciplinary hearing and get it all done in one meeting. Now it is normal to expect employers to hold a separate investigation meeting, preferably with a different person conducting the two meetings. It’s hard to see how this actually does anything other than delay a resolution.

Whatever the rights and wrongs of the situation the consequences of getting it wrong can be dreadful. In a case I dealt with a few years ago a client of mine sacked an employee for bullying and harassment. The final straw came when the victim found a note attached to his car with a picture of a gun and the word “Beware” written under it. The alleged bully was known to have connections with far right groups. When questioned he said it was a” joke” that had gone wrong and he had put the note on the wrong car by mistake. The employer didn’t believe him as he already had a warning on file for this sort of behaviour and he had used the same excuse then.

What they didn’t do was investigate his excuse further by trying to find out who he had intended the message for and why he had got the wrong car. When the case came to court the tribunal found for the employee, not became they believed him, just because the employer hadn’t looked into his excuse. The employer paid out £15,000 in damages.

Even more frustrating when they did look into it they could have easily disproved the bully’s story, but it was too late then.

So I suppose the message is clear if you don’t investigate properly it could cost you thousands.

A Few tips to help you conduct a disciplinary investigation for you

1)      Try to get someone else to investigate for you.

2)      If you have to do it yourself, do not go into it “angry”, you need your wits about you.

3)      Do not prejudge the issue, your employee maybe the most Lazy/ useless/ deceitful (delete as appropriate) person you have ever met I but on this occasion they may be innocent.

4)      If they tell you a story that is completely different from your understanding, look into it.

5)      Challenge what they say, if it doesn’t make sense to you get them to explain it.

6)      Finally if you don’t believe them, tell them you don’t and ask them to corroborate their story.

 

If you have on employee you need to investigate give us a call on 0161 850 1122 for a free consultation.

Gross Misconduct

When an employee loses the plot!

There are words which are used a lot when dealing with employees which rarely mean what you think they mean. Two of these are Gross Misconduct.

Gross Misconduct is behaviour which is so bad that the contract of employment cannot continue to exist. It is surprising how many employers think that Gross Misconduct (GM) is a fairly common event. In truth it should only happen on rare occasions. What many people don’t realise is that the sheer stupidity that some people can exhibit (like the chef who burst into a high level private business lunch to announce there were morons in the kitchen and they shouldn’t be surprised it the food was c**p) does not necessarily amount to GM in the eyes of the law. The defining factor is often down to the intentions of the employee.

Hence a member of bar staff who deliberately steals £10 per shift knowingly causes the organisation damage (however minimal) whereas the crazed chef was not intentionally trying to damage the restaurant, even though the net effect could have been far worse.

A second factor is how bad the damage is to the employer. If you allow the employee to continue working you are giving a fairly strong indication that the behaviour in question was not that bad. Now most of us in business have found ourselves in situations where we have wanted to take a particular course of action, but because of outside events we have had to bide our time. In the case of our chef, in order to be safe in employment law terms we would have to send him home immediately and potentially make the situation even worse as our be-suited customers were left at the mercy of our morons without the guiding skills of a crazy chef.

In this case an Employment Tribunal could find that the behaviour did not amount to GM as the chef was not immediately sent home. However all is not totally lost, the tribunal is entitled to reduce any award to take account of the behaviour of the employee.

The problem is you have to go through the hassle of fighting a court case, before you get to that stage.

In my experience most Employment Judges get it right most of the time. It’s just that you have to go through disruption of getting to that point.

If you believe that one of your employees has done something so bad they deserve to be dismissed, give us a call first, we won’t try to persuade you not to do what you want to do, we’ll just give you the help you need to rake sure you make the right decision for your business.