1. © Weightmans LLP Difficult Employees 10 th November 2015 Peter Forshaw Partner DDI: 0151 242 7935 peter.forshaw@weightmans.com Andy Halpin Solicitor DDI: 0151 242 6949 andy.halpin@weightmans.com

2. © Weightmans LLP Learning objectives ▪By the end of the session the delegate will be able to: ▪Identify the types of ‘difficult behaviour’ commonly experienced in the workplace; ▪Appreciate the impact such behaviours can have on individual and fellow-staff morale, safety and productivity; ▪Understand the legal duties on both employers and staff in respect of their behaviour in the workplace; ▪Review the skills and strategies which can be deployed to tackle such behaviour, including tips on how to manage ‘difficult conversations’ and deploy internal policies and procedures effectively.

3. © Weightmans LLP Agenda ▪What does ‘challenging behaviour’ look like? ▪Opportunities for intervention ▪Using Internal procedures effectively ▪Performance or conduct: Which route to take? ▪Any other options? ▪Tackling Multiple Grievances ▪Towards the Exit ▪‘Protected’ Conversations ▪Negotiating Settlement ▪What will it cost?

4. © Weightmans LLP ‘Challenging Behaviour’ ▪Failure to respond to reasonable requests and instructions ▪Demotivated and unproductive ▪Constant complaints/serial grievances ▪‘Stirring’ discontent – encouraging other employees to raise claims? ▪Failure to ‘get-along’ with team/damaging team dynamic ▪Intimidating or upsetting team members ▪Saps management time and emotional energy

5. © Weightmans LLP The impact on business ▪Management time ▪Morale of staff ▪Consistency of approach ▪Impact on clients and customers

6. © Weightmans LLP Opportunities for Intervention ▪1:2:1 Meetings ▪Team Meetings ▪Assert or reiterate behavioural standards ▪Facilitated meeting with line manager and HR? ▪Appraisals ▪Include contribution to/impact on team as criterion? ▪Avoids ‘difficult’ employee being singled out ▪Formal dispute resolution – e.g. mediation? ▪A formal internal process; conduct/capability?

7. © Weightmans LLP Opportunities for Intervention Mediation ▪Independently facilitated process ▪Who should the mediator be? ▪Intense and concentrated focus on the problem (whole day or more) ▪Flexible: Mediator can adapt procedure to suit parties ▪Allows for ‘creative’ solutions ▪Confidential and without prejudice ▪Excellent success rate

8. © Weightmans LLP Beware of Discrimination ▪If the employee ‘just doesn’t fit’ – Is there a reason? ▪Is there a root cause behind apparent poor performance? ▪Protected characteristics under the Equality Act? In particular consider: ▪Race/religion or belief? ▪Any religious/social/cultural factors that might inform employee’s behaviour? ▪Disability Discrimination ▪Any conditions that impede communication/social interaction?

9. © Weightmans LLP Dismissal – The Legal Basics ▪Employment Rights Act 1996 – s98 ▪Five potentially fair dismissal reasons: ▪Conduct ▪Capability and qualifications ▪Redundancy ▪Breach of Statutory Restriction ▪Some other Substantial Reason (SOSR) ▪For employer to establish reason or principal reason

10. © Weightmans LLP Using Internal Procedures Capability or Conduct? ▪Early and pro-active application of internal procedures is key ▪Can be difficult decision ▪Often Significant overlap – Skill vs Will ▪Choose at early stage and apply process rigorously ▪Don’t ‘muddle’ conduct and capability ▪Belief in ultimate dismissal reason must be ‘genuinely held’ - which process do you instinctively feel is appropriate? ▪Most important factor is that a fair procedure is followed

11. © Weightmans LLP Applying Procedures Effectively Conduct – Some Key Considerations ACAS Code of Practice on Disciplinary Cases Employer must establish that: ▪conduct was the actual / principal reason for dismissal ▪it had reasonable grounds (evidence) upon which to believe that the employee was guilty of misconduct ▪it adopted a fair procedure (e.g. when gathering/reviewing the evidence, and giving the employee an opportunity to comment) ▪that it was reasonable in all the circumstances to dismiss ▪S98(4) – Nature of the business will be considered

12. © Weightmans LLP Applying Procedures Effectively Conduct – Some key Considerations ▪Consider the employee’s existing disciplinary record ▪Previous warnings about unacceptable behaviour? ▪‘Phased’ process more likely to be fair for persistent minor misconduct ▪Investigation ▪‘Without unreasonable delay’ – ACAS Code ▪How much investigation is required? ▪Evidence and witnesses ▪Reluctant Witnesses ▪Third Party/Customer complaints

13. © Weightmans LLP Applying Procedures Effectively Capability – Some Key Considerations ▪ACAS Code of Practice does not strictly apply – but may provide useful framework ▪Probationary Periods – Useful tool for ‘difficult’ individuals ▪Evidence is key: ▪Document appraisals and important conversations ▪What does the last appraisal say? ▪Have you offered appropriate support/training/behavioural feedback? ▪‘Staged’ process with opportunity to improve most likely to be fair ▪Clear and measurable objectives

14. © Weightmans LLP Any Other Options? ▪Reorganisation or restructure: ▪To place ‘difficult’ employee in redundancy position or lower profile role ▪Very drastic measure ▪Take legal advice – fraught with risk! ▪SOSR Dismissal: ▪Where employee behaviour genuinely does not fit into ‘performance’ or ‘conduct’ box

15. © Weightmans LLP SOSR Dismissal ▪Approach with caution! ▪May potentially be suitable for: ▪Breakdown in trust and confidence ▪Reputational risk ▪Conflict of interest ▪Personality clashes ▪Other reasons that aren’t really ‘conduct’ and aren’t really ‘capability’ ▪Cite your specific reasoning ▪SOSR is not a ‘short-cut’ – Fair process must still be followed

16. © Weightmans LLP Tackling Multiple Grievances – Do’s ▪Treat every grievance separately ▪Avoid forming an opinion based on ‘history’ ▪Document meetings and decision in detail ▪Make sure you comply with the ACAS Code of Practice ▪Avoid ‘truncated’ procedure except by agreement ▪Consider Mediation ▪Think creatively: What interventions might break the cycle? ▪Be very wary of victimisation ▪Woodhouse v North West Homes Ltd ▪Legally irrelevant whether allegations have merit ▪Think very carefully before alleging bad faith and or dismissing

17. © Weightmans LLP Tackling Multiple Grievances: Don’ts ▪‘Jump’ straight into formal grievance procedure ▪Would an informal conversation help? ▪Is answer clear from workplace policy? ▪Hear grievances regarding application of policies with ‘inbuilt’ appeals (e.g. conduct/attendance) ▪Re-open ‘old’ issues ▪Be distracted by ‘red-herrings’ ▪Allow employee to dictate the terms ▪Consider objections but ‘stick by’ your decisions

18. © Weightmans LLP Termination by Settlement: Framework A ‘muddle’ of terminology! ▪‘Without prejudice conversations’ : Long-standing rule ▪Pre-termination negotiations – Introduced 2013 ▪Compromise Agreements now ‘Settlement Agreements’ ▪Without prejudice principle still relevant?

19. © Weightmans LLP Without Prejudice ▪Common law principle ▪Statements made in genuine attempt to settle existing dispute ▪Not admissible as evidence ▪Not protected if “unambiguous impropriety”

20. © Weightmans LLP Pre –Termination Negotiations ▪Conversations about parting on mutually agreed terms. ▪Content of discussions will be inadmissible in ET proceedings ▪No existing dispute necessary ▪Improved freedom for frank discussions ▪Applicable to unfair dismissal claims only NOT discrimination ▪Protection lost if any ‘improper behaviour’ ▪Key requirements – ACAS Code of Practice

21. © Weightmans LLP What is improper behaviour? ▪‘Improper behaviour’ is a matter for the ET ▪Non-Exhaustive list of examples in ACAS Code of Practice ▪‘Improper behaviour’ can include: ▪Harassment, bullying or intimidation ▪Offensive words or aggressive behaviour ▪Physical assault or the threat of physical assault ▪All forms of victimisation ▪Discrimination on the grounds of any protected characteristic ▪Putting ‘undue pressure’ on a party – e.g. insufficient time to consider offer

22. © Weightmans LLP Pre-Termination Negotiations Exercise Caution! ▪Always bear in mind that confidentiality may be lifted by Tribunal even if you’ve stated ‘without prejudice’ or s111A conversation ▪Employee need only allege discrimination for confidentiality to be dis-applied ▪Don’t say anything you wouldn’t want ET to hear!

23. © Weightmans LLP Having the Difficult Conversation  Plan meeting  Prepare what to say  Be fully aware of contents of offer and reasons  Introduce offer ‘gently’ – avoid ‘bolt from the blue’  Consider possible responses/behaviours  Use appropriate questions  Listen actively  Check understanding, confirm next steps  Always have a Plan B!  What will you say if employee refuses?

24. © Weightmans LLP Pre-Termination Negotiations: ‘Step by Step’ ▪Step 1: Approach employee to discuss issue ▪E.g. performance, conduct, employee appears unhappy etc. ▪Explain you would like to explore exit on agreed terms ▪Explain that, where appropriate, the alternative is commencing a formal process ▪Step 2: Is Employee interested in settlement? ▪Yes – Offer formal written terms ▪No – Explanatory letter offering opportunity to reconsider

25. © Weightmans LLP Pre–Termination Negotiations: ‘Step by Step’ ▪Step 3: Time to think ▪Employer must have ‘reasonable period’ to consider offer ▪ACAS Code of Practice suggests at least 10 days ▪Step 4: Does Employee wish to Accept? ▪If No: Back off! Trigger formal procedure if appropriate

26. © Weightmans LLP Pre–Termination Negotiations: ‘Step by Step’ ▪Step 5: Settlement Agreement ▪If Employee wishes to proceed provide ‘settlement agreement’ documenting the terms ▪Seek legal advice to draw up/review agreement ▪Employee must take independent legal advice on implications of signing ▪Step 6: Move on in confidence? ▪If no ‘improper behaviour or allegation of discrimination content of conversation cannot be raised at ET in event employee does not sign settlement agreement

27. © Weightmans LLP At Tribunal: What will it cost? ▪Cap on compensatory award for Unfair Dismissal – 52 weeks gross pay ▪‘Overall’ cap of £78,335 ▪Basic award in addition: ▪Calculated like a statutory redundancy payment; ▪£14,250 maximum based on £475 week’s pay ▪Uncapped award where dismissal discriminatory ▪Median award for Unfair Dismissal as at June 2015 – circa £6,955

28. © Weightmans LLP At Tribunal: What will it cost? Other costs to consider ▪Costs can now be awarded against Respondents ▪Costs of conduct of the claim ▪Financial Penalties for losing employers A Pragmatic Approach? ▪Cap on compensation and low median awards may make ‘pragmatic’ approach worthwhile ▪Fewer claims…or just a greater likelihood of other claims like discrimination or whistle-blowing?

29. © Weightmans LLP Contact Details Andy Halpin Solicitor DDI: 0151 242 6949 andy.halpin@weightmans.com Follow the Weightmans Employment Team on Social Media: Twitter: @Weightmans_Empl LinkedIn: Weightmans Employment

30. © Weightmans LLP Learning objectives ▪Identify the types of ‘difficult behaviour’ commonly experienced in the workplace; ▪Appreciate the impact such behaviours can have on individual and fellow-staff morale, safety and productivity; ▪Understand the legal duties on both employers and staff in respect of their behaviour in the workplace; ▪Review the skills and strategies which can be deployed to tackle such behaviour, including tips on how to manage ‘difficult conversations’ and deploy internal policies and procedures effectively.