Handling sensitive employee relation issues
As a people manager, you will sometimes have to deal with sensitive situations. Handling employee relationships requires tact, compassion, strategy and, of course, legal compliance.
Numerous kinds of issues arise all the time, ranging from minor misdemeanours to severe breaches. It might concern that their behaviour is unacceptable and does not align with your organisation’s values. Maybe their standard of work has deteriorated. Sometimes, their role itself has changed or even become unviable. In the gravest situations, there might be irreconcilable differences.
There is nothing that Moore Kingston Smith has not seen. In our experience, you may have to consider one of the following processes to resolve an employee relation issue:
- Commence the conduct disciplinary process
- Formalise the performance management
- Consider making the role redundant
- Offer a Settlement Agreement
The following guidance includes critical considerations to determine which situation you find yourself in and how best to move forward.
Commence the conduct disciplinary process
For example, an employee appears not to follow the rules and consciously behaves negatively. Speak to them. Get their side of the story. Consider getting statements from witnesses to an event or even gathering documentary or CCTV evidence.
Whether you deal with the situation informally or follow an official disciplinary process, make sure you do not fall foul of employment law. Conduct the process fairly to avoid further disenfranchising the individual.
Consider the following when deciding if you should invoke your disciplinary procedures:
Investigate
Until you investigate, you are unlikely to have all the information required to consider the remaining points. An investigation should involve speaking to the employee concerned, statements from witnesses to an event and any CCTV or documentary evidence.
Awareness of the rules and consequences
If the individual were aware of any rules or processes and chose to act contrary, this would indicate misconduct. If they were not clear on what they should do, training could address this.
If they are not clear why they are in place, they could have a defence for not following them. They may have thought they were improving a process and saving time by taking a shortcut or missing a step out.
They might not understand the gravity of the situation from an organisational branding, customer service, health and safety or compliance perspective. Understanding this could make the difference between you following a formal disciplinary process or choosing to deal with the situation on a more informal level.
Rules fit for purpose
Suppose an individual has committed an act of misconduct by not following a procedure at investigation. In that case, you may find that the guidelines need revisiting as another factor has changed, making them less relevant/suitable.
Disregarding procedures
If an employee has made a conscious decision to do something, despite knowing the rules and the consequences, this would be a misconduct situation.
Impact of the misconduct
Situations that have caused health and safety breaches, significant financial losses or criminal activity are generally considered gross misconduct.
Ascertain the potential outcomes for the employee or potential risks to other employees, clients, and the organisation. In severe cases of gross misconduct, or where people are not safe or comfortable working together during the disciplinary process, you could consider suspension.
Employers are obliged to follow strict rules that ensure any warnings or dismissals are fair and in line with the Employment Rights Act (Dispute Resolution) 1998. Seek advice before starting any formal process.
Formalise the performance management
If an individual is underperforming, you will want to find out why. Depending on the issue, there are various courses of action you can investigate ranging in complexity. In severe cases, you might want to instigate a performance improvement plan (PIP). A PIP is a formal process to manage and improve performance and can take up to six months to complete. If the employee does not demonstrate the required improvements, ultimately, it can lead to termination of employment.
Consider the following when deciding if your employee needs a PIP:
A clear job description and training
Ensure the employee knows what is required of them in a clear job description, setting out requirements, responsibilities, targets and deadlines. Where needed or requested, consider training needs analysis and plan and ensure training follow up with the employee.
Organisational changes
Sometimes roles, reporting lines or departmental structures change.
Regularly communicating these changes allows discussion to identify and resolve concerns with training, management and communication styles.
External pressures
Perhaps external pressures are impacting the employee. Suppose the employee feels that health concerns are affecting their performance. In that case, it may be that a few short-term adjustments will solve the issue. A supportive discussion can help make the individual aware of any Employee Assistance Programmes or an occupational health assessment.
Express your concerns
If you are unhappy with an individual’s performance – tell them! Any of the points mentioned could impact their performance, and they may not be aware of your concerns. Still, until you have a conversation, they may not tell you.
Disregarding procedures
Purposefully taking shortcuts or not completing tasks may be a conduct issue, and you should follow disciplinary procedures. The individual knows what to expect and how to do it but chooses not to – failing to follow a reasonable management request.
Suppose all of the above are investigated, and relevant actions are taken. A Performance Improvement Plan will likely be required.
Consider making the role redundant
Sometimes, the job role is the problem rather than the employee. Consider all options as premature redundancy decisions could result in financial implications for the Company, i.e., unfair dismissal claim, unnecessary redundancy and recruitment costs.
Consider the following when deciding if redundancy is relevant:
Role suitability in the current business lifecycle
Over time businesses evolve what was the right fit a year ago may no longer be the right fit now. You may need more seniority for management, a strategic approach, or less seniority now that processes are in place.
Perhaps workloads have increased, and you need additional staff or reduced, and a part-time arrangement is best. Consider if this is the role you need going forward.
Where the role no longer exists
Your decision will need to be for the current and future needs of the business.
For temporary concerns, keep a close eye on the situation to see how it evolves. If the situation does not improve, redundancy may be the right option.
A larger re-structure
Consider reviewing your organisational structure to determine it meets your business’ needs. In a standalone role, redundancy would only apply to the employee. If several employees carry out the role, ensure a fair process with a selection exercise.
Reduce the impact of redundancies on morale by holding redundancies over one short period rather than multiple times over extended periods.
Considering the above and you determine the role(s) are no longer needed or fit with the business, you will have a redundancy situation.
Suppose you feel that redundancy is the right option for your business. In that case, you will be obliged to carry out a redundancy consultation process if the employee has over two years’ service.
The redundancy consultation process can vary depending on the circumstances. However, as a minimum, redundancy consultations can be completed within two weeks and consist of three redundancy meetings.
It would be best to make no redundancy decision until the end of the consultation process. The redundancy is a proposal until the end of the consultation, as the consultation period aims to see if the individual or Company can find any alternative to redundancy.
Offer a Settlement Agreement
Suppose you have identified the issue with your employee as conduct, poor performance or a potential redundancy. You may want to consider alternatives to following the formal HR processes. In that case, a settlement agreement could be a good option.
Settlement agreements are legally binding agreements between employers and employees, which allow the employer and the employee to avoid formal and often stressful HR processes, allowing the employee to leave with an enhanced payment in return for giving up their right to pursue any claims against the employer.
Consider if you are thinking of offering an employee a settlement agreement:
Your offer
Consider what you want to offer, any financial or time limits, and if the offer is not accepted. This will help you with everything, including deciding what to provide the employee, what to say in the settlement discussions and what HR processes you may need to follow.
Incentives should be more than the employee would be contractually entitled to if you dismissed them for conduct, poor performance or redundancy, whichever applies.
Key terms in the agreement
Settlement agreements are legal documents and contain a lot of standard clauses. However, you may include a variety of bespoke clauses to give you additional protection, such as committing the employee to provide a handover or competing tasks, returning any company property, not making derogatory comments about your Company and confirming their commitment to any post-termination restrictions in their contracts of employment. You can also include a reference and announcement.
Choose the right settlement process to follow
We can advise you, depending on the circumstances of the case, whether to have a without prejudice discussion or a pre-termination discussion which will…?
Without prejudice discussions are used when there is a legal dispute, e.g., ongoing disciplinary proceedings or litigation threat.
Use pre-termination discussions where there is no dispute, and the only potential claim from the employee is unfair dismissal. Both types of discussion are very similar, but it is essential to label the conversation correctly to remain protected.
The settlement discussion
We recommend a script and an offer letter that you can hand to the employee at the end of the meeting or amend if negotiations happen. In the session, outline the issues to the employee before making your offer and explain the default position that you will follow if they do not accept. Staying on message and not saying anything that might look like improper behaviour or undue pressure is crucial to keep the discussions confidential and avoid potential claims.
Where the employee wants a change or rejects the settlement
Suppose the employee says they don’t want a settlement or ask for more money. In that case, you could either accept the employee’s counter-offer, hold your original offer open for acceptance despite the rejection, increase the offer or close the negotiations and revert to your default position.
Pay a solicitor to give the employee legal advice
The law requires the employee to take legal advice from an independent solicitor on the agreement’s terms and effect, and it is generally accepted that the employer pays for that advice. Think about how much you are prepared to pay.
The usual benchmark is £500 + VAT, but some employers offer less and some more.
Get in touch
If you would like any advice or support on the above scenarios or are unsure which process would apply to your situation, please get in touch with a member of the Moore Kington Smith People Advisory team. We will be happy to share our expertise and experience with you.