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Jan 2010: How to handle employee disciplinary problems

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Human Law Mediation Ezine - January 2010

How to handle employee disciplinary problems

The thaw may be coming to the wintery weather but it does not deal with some of the problems some human resource professionals and business managers have been facing. In the weeks since Christmas members of staff failing to show up for work could be due to a genuine inability to battle the conditions or a sign of limited commitment or malingering from poor performers.

It’s a tough time to have to try and tackle such problems but with the likelihood of further poor weather to come employers needs to nip problems in the bud and show all employees that members of staff who don’t perform, fail to show proper commitment to their duties or create disruption in the workplace will be dealt with.

If you have staff you feel have used the poor weather as an excuse not to work there are some options you might take:

  • Theoretically, an employer may contemplate disciplinary action if they felt somebody was able to work but had chosen not to. But given this would involve complying with the minimum statutory disciplinary procedure and ensuring consistency between employees it is doubtful that many employers would want to devote time and resources to investigating the circumstances of individual workers.
  • Another option would be to deduct pay but this is likely to be seen as unduly oppressive.
  • The most likely option is to require employees to take a day's leave as part of their holiday entitlement. However this does raise the issue if an employee may have been taking advantage of the position and you feel that you do want to take disciplinary action.

The majority of legal advice given on the internet tells you what you cannot do but if you do feel that someone’s performance is an issue, what steps can you take against the employee?

This is a Guide to taking action against an employee.

1. Recognise your emotions. Write them down and express them. When I am under stress what I do is to sit down and reflect on the emotions that I am feeling. Ask yourself – what precisely are your feelings about this employee? When did I start feeling this? The key is not to be judgemental so that you get anger and any other feelings more crystallised. The danger is that if you do not understand fully how you are feeling you will have residual negative feelings in you which may manifest later, and may lead to an error or a mistake.

2. Express them verbally. Speak to a trusted colleague, advisor or lawyer about your frustrations and get them out of your system. By doing this you can start getting a sense of perspective and seeing if the problem with the employee is really as bad as you think it is. You will start getting some objective feedback on the situation and either confirming or denying how you feel.

3. Start considering your options. Is the position with the employee really bad? What would be the pros and cons of taking disciplinary action? Could you consider employment mediation? Do you have to take legal action? Start considering commercial realities. Generally if you do end up in Employment Tribunal the costs will be disprortionate and should be avoided at all costs.

4. Consider mediation. The advantage of mediation is that it enables solutions to be reached in 80% of cases and can enable the relationship to be continued. Alternatively if the situation is hopeless a mediator may be able to broker a deal if the lawyers are involved. Mediation works in at least 80% of cases and is a cost effective way of resolving disputes.

5. Consider Compromise Agreements as they negate the costs of having to deal with a Tribunal hearing. If you use Compromise Agreement be very careful how you present it. Whilst the negotiations about Compromise Agreements should be without prejudice and off the record, it is possible that the employee could argue in Tribunal that these discussions are on the record, thereby showing that the employee was constructively dismissed.

6. Be prepared. If you are minded to take disciplinary action against an employee, then ensure that you are both legally and mentally prepared. Being legally prepared involves complying with contractual terms if you have them and ensuring that you have valid legal grounds for dismissing the employee. If performance is an issue make sure that you have prepared the ground. Probationary periods are very useful for weeding out staff that don’t come up to scratch. As soon as a problem arises you should let the employee know why you are unhappy.

7. Consider mitigating circumstances. If someone isn’t performing, there could be genuine reasons. Do they really know what’s expected of them? Managers should remember that the aim of any disciplinary process is improvement — dismissal should be a last resort.

8. Keep the Business Informed. If you are going to take disciplinary action against the employee, ensure that fellow management and other relevant stakeholders, like your HR team are informed. This is to ensure that they can provide input and if there is fall-out later they will not unfairly blame you as you acted in isolation.

9. Review the position continually. Consistently evaluate how the negotiation is going and consider if you are moving closer or further away from settlement. If settlement looks like it is happening, all well and good. If negotiations are faltering ask yourself why and what you can do about it?

10. Give the problem your time and full attention. As I have written in an earlier ezine listen. Effective communication starts with the speaker taking responsibility for understanding the language, perspective and experiences of the listener.

Effective listening means emptying your mind of all the thoughts competing for your attention, including what you are going to say in response – and giving up your ideas about what the speaker should do. If you do this you will have a greater understanding of where the other side is coming from. When listening fully you will pick up through tone and pitch which points cause them most concern, through the words they use you with understand what the main points at issue are and by actively listening you will demonstrate to the other side that you are willing to consider their perspective. So many battles result from poor communication and it’s so easy to avoid by listening properly.

For advice on handling your employee discipline problems contact Human Law Mediation

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Justin Patten
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"I would like to take this opportunity to express my complete satisfaction in that which took place in our recent mediation. The whole procedure was conducted in a civilised, appropriate manner in which all were allowed to explain the various problems that had taken place. I would strongly recommend all to take this easier route to a solution."
T.A.C. Page, A.W. Page (Upholsterers) Ltd

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