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.

Staff Handbooks-What Employers Should Know

employee-handbook

“Good fences make good neighbours”.

This old saw is true because it reminds us that good boundaries and clarity between two parties leave less room for dispute or rows.

And so it is with the employer/employee relationship-the more clarity and less ambiguity, the less likely there will be costly disputes/claims.

Make no mistake: the most essential document governing the employment relationship is the contract of employment.

However staff or employee handbooks can be incredibly useful too, especially to communicate some essential policies and procedures to employees without the contract becoming too long and unwieldy.

You can draw up a policy/procedure for just about anything in the workplace. But there are just a few policies which are absolutely essential and which will help you avoid losing employment related claims either in the Courts or at the Workplace Relations Commission or Labour Court.

Before looking at the essential policies you should have in place here are some important points about staff/employee handbooks generally:

  • Make sure they are easy to read and understand
  • Publish it on your company website in addition to giving a copy to each new employee
  • Use a format that is easy to update
  • Ensure that new entrants to your workforce have read and understand the staff handbook and they indicate this in writing by their signature
  • Consider building time into induction training for new employees to allow for reading/understanding the handbook
  • Review and amend the policies regularly to ensure any changes in the law or best practice are reflected.

Most important policies and procedures in the workplace

The most important policies/procedures to have in place in Ireland are those covering

  1. Grievances
  2. Discipline
  3. Dignity at work (including anti harassment, anti bullying and equal opportunity)
  4. Health and safety

Is the staff handbook part of the employment contract?

This is an important question and should be clarified in the employment contract itself.

There is divided opinion as to whether it should be incorporated into the contract of employment or not.

My view is that it should not be incorporated as changing policies/procedures or incorporating new ones into the staff handbook can lead to the necessity to obtain the employees’ consent each time as it would be a change of the existing contract otherwise.

If the handbook is incorporated for example and the employer fails to follow fully the grievance procedure or within the timeframe specified he would be leaving himself open to a claim for breach of contract.

However reference should be made in the contract of employment to the staff handbook and the employee’s confirmation that he has read and understands the contents should be obtained.

Some employers prefer to issue all employees with a staff handbook as it allows them to monitor who has received one and who has not. However this can get expensive where there is a large number of employees and where there are regular changes/updates to the handbook.

This is why the internet and the company website offers a cost effective way of giving access to all and ensuring updates are easily carried out. However it is important that all employees have access.

Some other topics, in addition to the 4 essential ones above, which should be considered for the handbook include:

  • Sick leave/absence/pay
  • Deductions from wages
  • Collective agreements
  • Family friendly policies
  • Holiday leave and pay
  • Hours of work
  • Information and consultation arrangements (if any)
  • Overtime pay
  • Notice periods
  • Bank holiday working
  • Bereavement/compassionate leave
  • Communications
  • Internet and email usage
  • Use of company car/van/equipment/mobile phones/laptops
  • Dress code
  • Drugs and alcohol testing/usage
  • Expenses procedure
  • Gifts and hospitality
  • Incapacity and capability
  • Induction
  • Jury service
  • Performance appraisals
  • Redundancy
  • Reference policy
  • Travel policy
  • Whisleblowing
  • Training and promotion
  • Trade union activity
  • Smoking
  • Stress
  • Retirement and pension benefits

Some of the policies/procedures above would only really be relevant to large organisations. Smaller employers would not need many of them.

But any employer with at least one employee would still be well advised to ensure clarity in the employment relationship.

Because it will reduce the chances of a successful claim and lessen the chances of time consuming, and potentially bitter, disputes in the workplace.

Do you need a staff handbook?

I can supply you with one for €100 plus vat.




Here’s what’s included in it:

Contents

1 Introduction

1.1 Welcome

1.2 Purpose of this Handbook

1.3 Company Background and Mission Statement

1.4 Employment Records

1.5 Data Protection

2 Company Policies and Procedures

2.1 Disciplinary Procedures

2.1.1 Purpose of Policy

2.1.2 Scope

2.1.3 Policy

2.1.4 Offences

2.1.4.1 Misconduct

2.1.4.2 Gross Misconduct

2.1.5 Procedures

2.1.5.1 Informal Counselling

2.1.5.2 Formal Disciplinary Procedure

2.1.5.2.1 The Investigation Procedure

2.1.5.2.2 The Disciplinary Procedure

2.1.6 Appeals

2.2 Grievance/Dispute Procedures

2.3 Bullying and Harassment Policy and Procedure

2.3.1 Harassment, Sexual Harassment and Bullying

2.3.1.1 Harassment

2.3.1.2 Sexual Harassment

2.3.1.3 Bullying

2.3.1.4 Lack of Respect

2.3.2 Procedures

2.3.2.1 Informal Procedure

2.3.2.2 Formal Procedure

2.3.2.3 Investigation

2.3.2.4 Outcome

2.4 Health and Safety Policy

2.4.1 Principles applying to Health and Safety

2.4.2 Accident Reporting

2.4.3 Fire

2.4.4 First Aid

2.4.5 Personal Protective Equipment

2.4.6 Smoke-free Workplace

2.5 Equality Policy

2.5.1 Introduction

2.5.2 Objectives

2.5.3 Responsibilities

2.5.4 Structures

2.5.5 Recruitment and Selection

2.5.6 Career Development and Training

2.5.7 Complaints and Redress

2.5.8 Harassment and Bullying

2.5.9 Positive Action

2.5.10 Review and Monitoring

2.6 Redundancy Policy

2.7 Visitors

3 Terms and Conditions

3.1 Probationary Period

3.2 Hours of Work

3.3 Breaks and Rest Periods

3.4 Absence

3.5 Hygiene

3.6 Dress Code

3.7 Alcohol and Drugs

3.8 E-Mail, Internet and Telecommunications Use

3.9 Monitoring of Internet and Email Use

3.10 Confidentiality

3.11 Right to Search

3.12 Resignation and Termination

3.13 Lay-Off/Short-Time

3.14 Exit Interviews

3.15 Company Telephones

3.16 Application Information

4 Leave and Benefits

4.1 Annual Leave

4.2 Public Holidays

4.3 Maternity Leave

4.4 Paternity Leave

4.5 Parental Leave

4.6 Force Majeure Leave

4.7 Carer’s Leave

4.8 Adoptive Leave

4.9 Jury Duty

4.10 Compassionate Leave

4.11 Pension Policy and Plans

4.11.1 Pension Policy

4.11.2 Personal Retirement Savings Account (PRSA)

As you will see, it gives you the most important policies and procedures you will need in the workplace. If there is any particular policy that you  require for your business, let me know and I can probably do something for you.

When you order yours from me I just need the name-the legal entity-of your business. I can then supply the staff handbook by email and you simply print it off and give it to your staff.




Are you an employer?

Need a quote for a contract of employment? Contact me.

I can supply you with

  1. a template contract which you will complete yourself for each employee. This would involve things like commencement date, job description/role, rate of pay, and any other specific details for the individual employee and/or
  2. individual contracts for each employee-we get all the necessary details from you for each employee and draft the contracts for you.

Here is (nearly) all I know about contracts of employment: The Employment Contract in Irish Employment Law-The Facts You Should Know. I think you fill find it useful.

Here are my services for employers.