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False Economy - Take Advice Before Its Too Late!

View profile for Joan Casson
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We understand that when you’re trying to run a business, just getting on with the day-to-day tasks can take all of your time.  Other matters seem so much more urgent than, for example, an employee’s repeated lateness, repeated minor mistakes or small conduct issues.  But ignoring HR matters can prove expensive in so many ways.

IGNORING CONDUCT OR CAPABILITY ISSUES

Why & How it Happens

Most of us understand the process of warning employees about minor misconduct, attendance or capability issues; however, so many times the process is ignored.  Many employers were themselves employees at one time and want to be seen as good employers who are friendly and approachable.  They may prefer to avoid uncomfortable disciplinary meetings or the perceived fallout from confronting problems head on.  They may be concerned that the underlying issue may be sensitive or their employee will not react well to a disciplinary or capability process.  Few people want to make their staff unhappy or angry as a result of subjecting them to a disciplinary process.

As a result, concerns may be raised informally by making a good natured, light hearted joke out of the employee’s foibles, for example, their repeated lateness or mistakes.  The employer probably hopes that their employee will take the hint and confrontation and time consuming meetings can be avoided.  This tactic may work, but it could just as easily result in the employee taking offence or taking no notice at all.  Taking offence could result in the employee leaving the job and claiming constructive unfair dismissal or discrimination.  Taking no notice at all may result in the employer getting so fed up that the decision is made, “He has to go . . . NOW” when the employer has no legitimate right to dismiss.

Unfortunately, informal comments do not qualify as a warning and do not put any employer in the position to dismiss.  By all means, in the first instance you should deal with minor employment issues informally, but you should deal with them promptly and make it clear that what is happening is not acceptable.  When something minor happens just a few times, address it by speaking to the employee, enquiring about the underlying reasons, and discuss ways of improving.  If no good explanation has been given by the employee for their actions, it must be emphasised that improvement is required.  If the employee does not seem to be taking the informal warning seriously, you may even need to explain that any recurrence may be dealt with in the future as a disciplinary or capability matter. 

You should make a record of any informal chats you have had with your employee accurately setting out the time, date and what was said.  This record confirms that the issue had been raised and discussed with the employee if it is becomes appropriate to mention that the issue has been discussed before.  It may be appropriate to confirm the discussion and outcome in writing especially if it is more serious and seems more likely to continue without formal action being taken.  If many employees are guilty of the same conduct, you may need to issue a formal announcement to all employees that these actions will no longer be tolerated and may result in a disciplinary or capability process if they continue.

The point of the formal process is to make it clear to your employee what the consequences will be if they continue as they have been and instead persuade the employee to improve attendance, conduct or performance.  You should give your employee a warning of a specified duration making clear the improvement which is required.  Under the ACAS Code of Practice on Discipline and Grievance Procedures, only a first written warning and final written warning are required.  Hopefully the employee will choose to improve.  But if improvement is unsatisfactory or other acts occur while the warning is pending, you are then in a position to proceed to the next warning.  Presumably, by the time you get to the end of your tether and dismissal seems appropriate, you will be in the position to proceed with dismissal knowing that you have done all that could and needed to be done by issuing warnings as and when needed.  (Please note, in a formal process, it is necessary to invite employees to a meeting giving them all details of the complaints against them and time in which to prepare for the meeting.  At the meeting they have the right to be accompanied by a trade union representative or work colleague.  Issuing a warning at a meeting during which the issue was discussed but the employee was not aware that it would be discussed, is not a valid warning and cannot be relied upon to support a dismissal in the future.)

The Consequences

If you do not promptly address employment issues, you may become impatient and, in this way, reduce your ability to deal with the matter reasonably and appropriately.  Your inaction may make matters worse and also create dissatisfaction in other employees.  Some employees may even start behaving the same way.  After all, if one can do it, everyone should be able to do it.  If you then take these other employees to task over their conduct, they may claim discrimination or victimisation.  Discrimination and victimisation in employment law apply in relation to protected characteristics or when specified issues have been raised and a person is treated detrimentally as a result.  These claims could be made while an employee remains employed.  Even if those situations do not apply, an employee with sufficient continuous employment could claim constructive unfair dismissal as a result of the unequal treatment. 

You should try to avoid these things by acting promptly and dealing with matters formally when minor problems persist.  The above is only an outline.  Taking advice on the appropriate process can reduce the potential for making mistakes and can help in dealing with the matter more objectively.  It can save a lot of time and expense later if, despite best efforts, your employee pursues a claim against you.  It can also create confidence in other employees that you are the good but fair employer you want to be.

Speak to me for advice on aspect of this article. 

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