It is the hardest conversation an employer can have with an employee, but contrary to a common misconception, it is perfectly possible to fire somebody legally; as long as you obey some simple rules. Lloyd Clarke explains.

Most of us have had to endure a difficult member of staff at some point during our working lives.

They may be good at their job but they display characteristics or behaviours in the office which can have a devastating impact on staff morale.

In academic circles, such an employee is described as “toxic” and numerous workplace studies have shown that these people cost businesses vast sums of money, with other workers’ productivity taking a nosedive, going on sick leave or even resigning.

So what can we do about them?

How to deal with a toxic employee?

Tread carefully

Don’t be rash. There are ways a company can tackle the problem of a toxic employee without seeking to terminate their employment.

Firstly, employers need to be clear about what’s permissible within the business, identify low performers and address their behaviour head-on.

Be explicit about what they are doing wrong, give them targets to improve, monitor and measure these and offer feedback.

Only if this course of action fails should you consider taking formal disciplinary action against the individual concerned.

Getting the boot

Sacking an under-performing employee isn’t as difficult as we are led to believe.

Although we regularly read scare stories about the employment rights of UK employees, employers also receive a level of protection.

If you plan to terminate the employment of a member of staff, work out how long they have been with your company.

If the employee has less than two years’ service, they can’t normally claim ordinary unfair dismissal. So, provided there is no discrimination involved, you can dismiss by giving them the amount of notice they are entitled to receive under their contract.

Tread carefully, however.

You still run the risk of ending up in a Tribunal because a disgruntled employee could make a claim for discrimination in order to try to force a settlement. For example, if they can prove that their performance issues arose because of a medical condition that can be classed as a disability, then the fact that they were dismissed on the grounds of poor performance could mean they could bring a disability discrimination claim against you – with no minimum length of service required. It might be worth considering this risk before you act. You may wish to treat them the same as you would an employee who has been with your firm longer.

For those with two years’ service or more, you can still dismiss quickly, provided you are willing to make a payment to them.

There is nothing to stop you from having a ‘protected’ or ‘without prejudice’ conversation to agree on an exit, using a settlement agreement to prevent any claims being made.

This is likely to be an attractive option if you want the employee out without going through a formal procedure.

Formal procedures

Of course, if you want to follow a formal process you should:

  • Raise any issues that you have as soon as possible.
  • Conduct any necessary investigations and then discuss your findings with the employee, giving them an opportunity to put their case forward.
  • Hold a formal disciplinary or grievance meeting. Employees are allowed to be accompanied to this (by a workplace colleague or a Trade Union representative, where they belong to a Trade Union) and should always be given the right to appeal any decision made.
  • Inform the employee in writing if disciplinary or other action is justified. In cases of misconduct or poor performance, a written warning or an improvement notice is usually given.
  • Give the employee time to improve. If another act of misconduct is carried out, or the worker’s performance does not improve within that set period, a final written warning should be issued.
  • Issue a final written warning. This should always set out the nature of the misconduct or poor performance and the change in behaviour or improvement in performance required with a final timescale. The employee should be informed of the consequences of further misconduct, or failure to improve performance, within a set period following a final warning, which could ultimately result in their dismissal or demotion.
  • Terminate their employment. Dismissal should be on notice. The employee can either be required to work their notice period or can be paid in lieu of notice, depending on what their employment contract says.
  • Instant dismissal without notice. This step is only appropriate where an employee has committed gross misconduct, such as theft, violence or behaviour likely to bring the employer into disrepute.

Remember, unless your policy sets out specific time limits, there are no hard and fast rules about the amount of time you should give your employee to improve, provided it is reasonable. Reasonableness will depend upon the reasons why the employee’s performance is unsatisfactory and the stage you have reached in the process.

Start as you mean to go on

While you can fire underperforming staff, it’s far better not to employ them in the first place.

The interview process can be used to weed out possible toxic employees.

Some companies do a two or three-stage interview process, for example.

Others try to meet candidates for a drink at the interview stage in order to see how they act in a more informal setting.

It has been known for big companies to bring psychologists into the interview to vet new recruits!

If you want to try to stamp out issues of toxicity in your workplace, you can also improve your internal communication channels to identify issues before they arise.

Try introducing employee surveys and forums which provide an opportunity for an organisation to tap into the views of its employees, good and bad.

If you want advice on employment law please call Lloyd Clarke on 01206 239761.

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