Mind What You Say

By November 11, 2013Disciplinary

Whatever the size of the companies we support, when it comes to employee problems there is a definite trend. On the whole, our helpline enquiries relate to misconduct issues, poor performance or intermittent persistent absence. Do any of these sound familiar?

In most cases the problem can be resolved and everyone lives happily ever after (until the next appraisal), but a small proportion of cases will ultimately end in dismissal. What we can never know at the outset is which cases will go all the way.

With that in mind, it is crucial that we follow a fair process in handling every case – not just because it gives us the best chance of resolving the problem, but also because if this is the case that’s going to end in dismissal, we need to make sure it’s a fair one.

For the ultimate dismissal to be fair, we must have followed the appropriate process that relates to the type of problem – misconduct, poor performance or persistent absence.

Misconduct describes behaviour that is blameworthy, for example, knowing the rules but breaking them anyway. In contrast poor performance, when this is caused by a lack of capability, or poor attendance when a colleague is genuinely ill, are not blameworthy.

The process that a company follows to manage these three big issues are usually fairly similar; an escalating series of warnings that a) make an employee aware of the problem and b) support them in trying to improve the situation – but the tone should be very different.

The process for managing blameworthy behaviour is the disciplinary procedure. The language used in all the letters, emails and warnings communicating with the employee can reflect that we are talking about an incident that we feel they are culpable for. This is the relatively straight forward one.

Capability and frequent absence tends to be where companies come a cropper. If we want to argue later down the line (read ‘Tribunal‘) that the reason for dismissal was one of the non-blameworthy ones such as ‘capability’ for poor performance or ‘some other substantial reason’ for frequent absences, all the correspondence that has gone before needs to support this.

If, in correspondence about an employee’s frequent absences, we have gone on about how they are letting the team down, or given them a guilt trip about the impact of their absences, or warned them they must improve – we are effectively suggesting that they are in control of their actions and the absences are blameworthy. With a paper trail of evidence to this effect, it would be tricky to try to argue the dismissal was for a non-blameworthy reason such as ‘some other substantial reason’.

I appreciate this may sound like inconsequential gobbledygook but the bottom line is that getting this wrong can land you with an unfair dismissal. If we say we dismissed for capability and a Tribunal decides the real reason for our actions was misconduct (we thought they were bunking off work when not really sick), we lose.

The golden rule is to decide what the real issue is up front – genuine frequent sickness absence or willful malingering – then ensure our language and tone at meetings and in all our written correspondence is consistent with the underlying view of blame or no blame.

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