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Time and again we have had the same questions posed to us from many of our clients. Re-occurring issues regarding poor performance, code of conduct and risky dismissals pop up most...

Time and again we have had the same questions posed to us from many of our clients. Re-occurring issues regarding poor performance, code of conduct and risky dismissals pop up most frequently. Find out what our experts say below!

1) I’m getting lots of complaints about staff bullying other staff- what can I do?

Firstly, it is important to establish exactly what the complaints are, ensure that you are considering facts and not hearsay.  If the complaint is about someone’s manager, it may just be that they are managing in a way that the employee doesn’t like. Staff can raise complaints in two ways – either informally or formally. It is always best to deal with things through an informal route where possible.

Begin by establishing the facts, specific details, dates, witnesses etc.  AS what the employee has done already and what they want to change/stop.

Complaints about bullying should always be handled seriously in order to ensure the behaviour is addressed and stopped. If proven, this could be treated as gross misconduct against the individual, which ultimately could lead to dismissal.

Remember with bullying accusations, it is important how the action was perceived by the individual, not how it was intended.  Act sensitively whilst carrying out your investigation and remain impartial whilst you are gathering the facts. Your handbook should ideally have a policy on dealing with harassment and how it links to the grievance procedures.

2) Is it right I can dismiss someone with less than two years’ service risk free?

Yes and no!  Employees with less than 2 years’ service cannot claim unfair dismissal, so it is relatively safe to sack someone within this time even if you don’t have a good reason. BUT – there are pitfalls that could get employers into trouble, including automatically unfair dismissals (such as: if the employee is pregnant (or has recently given birth), was intending to exert a statutory right (maybe to be paid the minimum wage) or if they had asked to be given leave to attend for Jury Service.). The other consideration is that certain groups of staff have automatic rights from the first day of their employment (so the two year rule doesn’t apply). Specifically, the law does not allow any form of discrimination on the grounds of a protected characteristic ( age, disability, gender reassignment, marriage/civil partnership, pregnancy/maternity, race, religion and belief, sex and sexual orientation) so if your ‘less than 2 year’ employee might have a protected characteristic, then dismissing them is not risk free at all.

We’d certainly recommend including something in your contract of employment that makes clear that the disciplinary procedure may not be followed in the first two years, to make it more straightforward. However, dismissing staff can be a risky business.  Although those risks are significantly reduced if the employee has less than 2 years’ service, there are still plenty of pitfalls to avoid.


3) Employee has 2 plus years’ service and has had 6 months off sick. Can I dismiss them?

Employees with over 2 years’ service have the right to claim unfair dismissal, therefore it is essential that any procedures and policies are followed carefully prior to considering any dismissal. In addition to that, sickness may be covered under the Equality Act which means you may have a legal requirement to consider adjustments.

The important thing with long term sickness is maintaining a dialogue with the employee, understanding the reasons for absence.  You can gain their consent to request further information from their GP, or Occupational Health, which will provide you with medical information relating to their ill health.

Although it is not impossible to dismiss an employee with long term sickness, there are steps which need to be taken and considered prior to making any such decisions in order to protect the organisation from potential claims. Hopefully you will have a clear and robust procedure in your employee handbook, which explains the obligations on both sides.

4) Someone has passed their probation, but their performance is poor. What can I do?

Even the best of recruitment and selection processes, where the successful applicant, their skills, knowledge and experience have been thoroughly tested through the recruitment process, can turn out to be disappointing.  Assuming that this is not down to poor ‘onboarding’ (have you got a clear plan for inducting new starters and supporting them at the beginning?), or failing to provide clarity about the job role and their objectives, you are left with one of two options:

First (and our recommendation, as you‘ve spent money in recruiting them in the first place): support the new starter, have clear discussions about expectations, set objectives, agree what support he/she needs to reach the standards required, agree timescales for review and follow up on commitments.  Most new starters will quickly be able to pick up the skills required, with support.  Give them the right support and they might shine!

Second: If they are within the first two years of their employment then it is possible to dismiss them (subject to the notes in the relevent question in this series).  If you’ve done what you can, then we advise calling them to a meeting with notice, being clear what the meeting is about, allow them time to prepare a response, discuss it with them and then make a decision – template letters for this are available from us, to make sure that you’re being reasonable in terms of timescales.

The fact that the probation period has passed doesn’t stop  you from acting, even if you have specified the period of the probation in the contract.  We’d like to think that all employers note the date when probation expires in their diary, so that the date doesn’t pass them by, but this often does happen.  As soon as you start to have doubts about someone’s suitability or their performance, that’s the time to address it.

5) An employee is often late, chatting with colleagues, texting in work time, surfing the internet and on Facebook at work. Can I formally discipline them?

Yes, you can, persistent failure to work to the required standard can be a disciplinary offence.  Firstly, you would need to gather evidence and ensure you have details of what the employee is doing.  Next it is important to speak to the employee and discuss the evidence with them.  Depending on the seriousness and the amount of evidence you have, at this stage it could either progress to a formal disciplinary hearing, or you may want to have an informal ‘meeting of concern’ with them.  Either way you’d be advised to set a monitoring period/action plan, for example for 3 months in order to give the opportunity to improve to the required standard.

The key to getting this right is to act as soon as you sense there may be an issue.  Letting things go rarely leads to the behaviour getting better on its own, and risks setting a dangerous precedent for other staff.  Rules about behaviour and expectations about conduct  at work are often – and usefully – contained within the Employee Handbook – if you’ve got one.

We hope these answers help with some of the most common questions we get as an HR consultancy. As you can see, our aim is to resolve any issues quickly and fairly before they have the chance to reach a tribunal. Using us to ensure that you are compliant will take the pain away from the trickier aspects of managing staff.  If you have any further questions, please call us on 01206 700 690 or email us at