Share Article: How can I deal with my problem employee without ending up in an Employment Tribunal?

Sometimes an employee might not be actively doing anything wrong, and might be perfectly capable of doing the job, but nevertheless there is something about them causing disruption to the workplace or business. Can anything be done without falling foul of legislation on unfair dismissal?

The best way of dealing with problem employees is to act quickly rather than letting things drift. A well drafted Contract of Employment should contain a probationary period with a shorter notice period during or at the end of probation. This will allow an employer to terminate employment where it genuinely “hasn’t worked out” with minimal disruption to the business.

Even where there is no probationary period, or problems have surfaced after probation is complete, an employee with less than 2 years’ service has no right to claim unfair dismissal. Giving an employee who has been with you for less than 2 years notice of dismissal should not result in a successful Tribunal claim, provided the dismissal is not discriminatory or for one of the automatically unfair reasons*.

There are cases where long standing employees have been dismissed fairly where there is no explicit misconduct or incapability. Dismissals for “some other substantial reason” can be fair provided that the employer has followed a fair procedure and considered the reason and whether dismissal is the right response to the circumstances. Examples include:

  • A difficult personality in a senior role, affecting his ability to form relationships with other senior executives and his conduct in meetings
  • A doctor who had questioned the clinical competence and integrity of his colleagues
  • An employee who had a disagreement with a customer, leading to a potential loss of business
  • Personal animosity between employees disrupting the business

Where there is no obvious incident to discuss in a Disciplinary or Performance Procedure, care must be taken to ensure that the problem is substantial enough to warrant dismissal. It’s also important to understand the background to any issues arising from personality, particularly where there seems to be a change in behaviour. The employee may be experiencing personal problems, a bereavement or even a health problem that is affecting their behaviour at work. That should be explored and taken into account. Where the health problem is serious enough, it might entitle the employee to a “reasonable adjustment” and make dismissal unlawful unless the employer can show that it is proportionate. Employees with less than 2 years’ service can bring claims for disability discrimination.

It’s well worth seeking specialist advice before dismissing for “some other substantial reason”. If you have any questions about how to manage a problem employee, contact Louise Taft for a no obligation chat as to how she can help.

020 7935 3522

* such as whistleblowing, pregnancy or health and safety reasons

Whatever your personal circumstances the above is only a guide and we would advise you to contact us to obtain definitive advice as you will appreciate that each person’s circumstances are unique to them.

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