How Employers Can Deal With the Problem Employee (and Avoid Costly Employment Law Claims)

 

problem employee

There’s a lad from outside Mullingar who has a peculiar way of making a living.

I’ll tell you about that another time, though.

Because last week he paid me a visit on different business: the common problem of the “problem employee”?

How do you handle this familiar problem?

Many employers come to me with a massive sense of frustration, sometimes anger.

Their emotions range from a sense that employment law in Ireland is loaded in favour of the employee, to fear of taking any action for fear of a costly claim to the WRC or Court from the employee.

What can you do if an employee is misbehaving or demonstrating a bad attitude or failing to perform or is guilty of misconduct or is forever missing days or guilty of persistent poor timekeeping?

Or is a liability or just not right for your organisation?

Or is he on the fiddle?

Small employers, without the benefit of trained HR professionals in their business, are often frozen with fear and indecision.

Quite frankly, they don’t have a clue what to do or what they are allowed to do to handle a problem employee.

Some employers take a metaphorical lump hammer to the problem; others take the approach of “being nice and hoping for the best”.

Neither of these approaches are recommended, quite frankly.

The Options

Firstly, you need to be mindful of a certain critical time period: 12 months’ employment or “one year’s continuous service”, according to the Unfair Dismissals Act, 1977.

Generally, an employee can only bring a claim for unfair dismissal when he/she has one year’s continuous service in the job. There are exceptions, for example, a dismissal on a discriminatory ground, or a dismissal because the employee has made a protected disclosure (Protected Disclosures Act, 2014).

By and large, though, the employee needs a year’s service.

So, if an employee is not working out, or is simply not right for your organisation, the contract of employment can be terminated.

Over one year’s service?

If the employee has more than one year’s service it is more problematic for you as an employer. The employee has more protection by virtue of the Unfair Dismissals act, 1977.

It provides that an employee can only be dismissed on specified grounds, provided there are substantial grounds justifying the dismissal :

  • Capability, competence, qualifications
  • Conduct
  • Redundancy
  • Illegality
  • Other substantial grounds

To dismiss on one of these grounds you need to ensure all your ducks are in a row; this article which I have written in the past about how to legally dismiss an employee should help.

You do need, however, to afford fair procedures and natural justice to the employee in terminating the employment as these are constitutional rights.

There is one further situation that arises: frustration of the contract. This could arise where an employee becomes ill or suffers an injury that makes it impossible for him/her to do the work. In other words, the employee is unable to fulfill his/her obligations due to incapacity.

It is said, then, that the contract is at an end as it has been frustrated.

Practical examples

Let’s look at some practical examples.

“Susan” is a secretary/receptionist in a medical practice. Her attitude is poor, her absenteeism rate is high, her work is poor, and worst of all, she has plenty of “sass” going on in her interaction with her boss because her boss is a non national.

If she has over 12 months’ service, the option for you as employer in this situation is to manage the situation professionally. You would use a performance improvement plan and/or the disciplinary procedure to let Susan know that her performance and conduct is unacceptable and will have to improve.

You would ensure to afford her the full benefit of your disciplinary procedure and ensure she is aware that improvements are required and if they are not forthcoming the sanctions set out in the disciplinary procedure will be imposed.

If she does not have 12 months’ service and is on probation either because she is in her first 6 months’ of employment or she has had her probation extended, her employment could be terminated.

“Gianluca” is a part time employee but appears to be angling to bring some sort of claim against you. He has already suffered a minor injury-back problem- as a result of lifting some stuff in the store room.

He’s due back to work shortly after his injury and his solicitor is writing to you about accepting liability for Gianluca’s injury. You have observed him carefully for a couple of years now and you know he is just gagging to quit the job and bring some sort of claim to the WRC (Workplace Relations Commission).

You are, quite frankly, walking on eggshells.

What to do? Firstly, report the personal injury suffered in the workplace to your insurer, if you have not done so already, and let the insurer deal with it.

Secondly, when he does come back, deal with him professionally, just like Susan above. Provided you respect the laws and don’t act unlawfully, you have nothing to get overly anxious about.

You do need to ensure you are giving him his correct rest breaks, holiday and public holiday entitlements, and all other employment obligations.

But once you are satisfied you are doing so you need not worry excessively.

The laws are not completely imbalanced or stacked against you, and you have rights too. It’s a myth to say otherwise.

For example, at its most basic Gianluca needs to perform in accordance with the contract of employment, and follow reasonable directions of you as employer and any of his line managers.

Even the Supreme Court held earlier in 2017 held that every wrong that an employee suffers in the job does not give rise to a claim or a legal cause of action.

So stay calm. The dice is not loaded. There is no need to act on any fleeting impulses you might have to take him into a darkened room and teach him a lesson!

Fianlly, Paul is a blocklaying contractor and Jimbo, one of his lads, is threatening to drive him around the bend. He is frequently missing from work, just texts that morning or the eveing before and says he won’t be in.

At this stage paul is getting suspicious that Jimbo is working for someone else a couple of days a week, as it seems to be the same days he is missing all the time.

In any event, the response from Jim should be the same as for Gianuca and Susan: invoke the disciplinary procedure after having the chat/some informal counselling with Jimbo to let him know the rate of “no shows” is unacceptable.

You will see that all these problems can be resolved in a professional way with no undue concern for claims against you, provided you stay calm and deal with the issues coolly and calmly.

Conclusion

Employment law is fundamentally based on the contract of employment.

If you go back through the centuries there was a “master/servant” relationship. If you fast forward a few hundred years there still exists a huge disparity in power between the employer and employee in negotiating a contract of employment.

Generally, it’s a case of, “take it or leave it”.

So statute law such as the Unfair Dismissals Act 1977 and the Organisation of Working Time Act, 1997 were introduced by legislators to protect employees and redress the inherent imbalance in equality of arms between employer and employee.

That’s all that’s happened.

So, if you are an employer, stay cool, abide by the laws and you won’t need to worry excessively about the whole shooting match being loaded against you.

Why I Can’t Answer Your Questions or Give You Legal Advice for Free

questions-advice-service-terry-gorry

Every day of the week, I receive emails, telephone calls, or letters from people with problems, issues, or questions.

Most people understand that there will be a consultation fee for my advice/opinion.

However, some people think I should be answering these questions and offering my opinion for free.

However, I can’t.

I simply cannot answer these questions or give legal advice for free.

You might think, “miserable/greedy/mean/grasping/stingy lawyer-typical”.

And I understand that reaction.

But let me explain why I have to adopt this policy.

Time and Complexity

Most situations might appear simple but, in fact, are complex, and require time and research.

Let’s take, for example, an employment scenario. In order to advise properly I will need to

  1. Find out all the facts and circumstances of the issue
  2. Review the contract of employment
  3. Review any relevant correspondence between employer and employee
  4. Review any investigation/disciplinary/medial reports relevant to the situation.

Doing this takes time, and possibly research.

Answering all the questions I receive on a daily basis, and providing accurate, professional advice is time consuming, for the reasons outlined above. If I was to do this for free I simply would not have sufficient time in the day to advise and help my clients.

Quite frankly, I would not be able to earn a living, and pay my office expenses, and professional expenses, and pay my mortgage and look after my family.

In summary, to provide you with a good service, and do you and your issue justice, I need to devote time and expertise to it.

And for this, I am sure you agree, I am entitled to be paid, just like you in your job.

Professional Negligence

If I give you bad advice, and you suffer losses as a result of acting on that advice, I am leaving myself open to being sued for professional negligence.

Yes, even if I was not paid.

Why? Because I am a professional and it could be argued that anyone asking me for advice is entitled to rely on that advice.

Yes, even if you have not paid.

Let’s call a spade a spade: if I am leaving myself open to being sued for professional negligence I think it is prudent to charge a consultation fee and give the necessary time to produce the very best advice I can give.

And let’s face it: giving advice is what I do for a living-what I get paid for.

Alternative Sources of Information

My websites provide a large quantity of useful information. They provide the backbone to the growth of my solicitor’s practice.

And all the information is completely free.

That’s the way it will remain; I will never charge for the information freely available on my websites:

But to advise you on your particular situation, taking into account your specific circumstances, and to weigh up all the relevant facts and then advise, there is a small consultation fee.

I trust you now understand why.

You can learn more about this service here.

If you don’t want to pay your local Citizen’s Advice may be able to help.

If you are happy to pay, click here.

3 Questions Employers Should Ask Before Engaging the Services of HR/Employment Law Service Providers

hr-services

I’m contacted regularly by a couple of “HR” guys I’ve come to know.

They invariably have a question to ask.

And a lot of the time, more than one.

They say that they just want to “pick your brains”. This is said to flatter me. And persuade me to overlook the fact that what they are really looking for is free advice.

The scary thing is that both of these guys have a lot of clients in the SME/small business sector. And some of their questions betray an appalling lack of knowledge in areas that they are supposed to be “expert” in.

They can probably acquire new clients in the SME sector because they are good salespersons. But when the crap hits the fan in their clients’ business in relation to employment law, they are on the phone to guys like me.

Because while they have a decent broad general knowledge of employment law, they don’t have the necessary expertise when the going gets really serious.

And when the employer is facing a potentially very expensive claim.

Or claims.

They operate like many others in this space-on a small monthly fee basis. That way, the employer/client doesn’t really feel the cost. But it adds up over a year. And really adds up over a number of years.

Recurring Income Model

Any recurring income model like this is a great way to derive an income for two main reasons:

  1. The apparently small cost. When you divide up a yearly fee into easily digested small chunks like a monthly payment (or even a daily payment) it looks very affordable and
  2. Inertia. Once the HR/employment law provider has the employer signed up the employer comes to accept the monthly deduction, which is small, and is unlikely to cancel it.

So it’s a great business model.

Unfortunately for the employer, lads like me end up picking up the pieces either in advising when a difficulty arises or in providing representation when a claim ends up at the Employment Appeals Tribunal, the Labour Court, or the Civil Courts.

SMEs, small business owners, and employers generally should ask some searching questions at the outset-questions about their qualifications in relation to employment law, if any; about what happens if the employer is given incorrect and costly advice; about insurance for professional negligence and whether the HR expert has any.

The relatively small monthly payment should not mask the potential cost for the employer is (s)he is on the wrong end of a successful employment related claim.

Awards in unfair dismissal or equality related cases can be very high. And when you throw in the cost of getting professional legal advice and representation for these cases it is quickly obvious that not asking some basic questions when obtaining the services of a HR/employment law service, like those outlined above, can be a big mistake.