08 June 2018

In business, staff are often your most valuable asset. You want to ensure you keep good dedicated productive staff and incentivise them sufficiently so they remain with your business. Replacing valuable staff can be costly; not only in terms of agency fees, but in terms of the impact the transition and/or gap can leave in your business.

In the current uncertain climate, it is not always possible to offer pay rises but you can offer something of value. In addition, offering training and development within the organisation can gain loyalty. Flexible working arrangements can also ensure that staff that need or want a suitable work/life balance remain within the business with working arrangements that suit both parties.

But what do you do if your efforts to support, incentivise and reward staff are not reciprocated? How you do you deal with members of staff who either do not pull their weight or fall short in performance?

First, at the start of employment make good use of your probationary periods and review the employee’s performance. If they are not going all out to impress you and work hard in the early stages, they are unlikely to be doing so 18 months – 2 years in. Secondly, make meaningful use of appraisals - ensure they are not a simple tick box exercise. Set out what is expected from your staff and ensure your managers are trained to manage situations where staff are short of the level required. This keeps staff on track and also enables the business to use the appraisals in order to deal with performance issues formally.

Where formal action is required, it is vitally important for employers to follow a proper capability or disciplinary process. Failing to follow a reasonable process is likely to lead to successful claims in the Employment Tribunal even in circumstances where disciplinary action or even dismissal is potentially justified. Employees who are not pulling their weight or who are disruptive or negative in the workplace can have a detrimental effect on other, otherwise good workers. If an employee is seen to be “getting away with” a lazy attitude or substandard work, this can lead other employees to rethink the effort they make when others are not being kept in check.

Briefly, a disciplinary process involves giving the employee advance notice of a formal meeting, setting out the issues, the possible sanctions and confirmation of the right to be accompanied by either a TU representative or colleague. The employee should then be given full opportunity to put forward their reasons, responses or points in mitigation before any decision is made as to sanction. If a warning is issued, the employee must be a given a right of appeal to be heard by somebody not involved in the initial investigatory or disciplinary process.

It is always better for employers to undertake capability or disciplinary reviews as soon as possible. This will either set the employee on the right track leading to an improved performance in attitude or alternatively, will enable the business to go to the next level of action, or ultimately dismiss fairly with notice.

In light of the abolition of Employment Tribunal fees in July 2017, employers should obtain early legal advice ensure that the correct process is being followed and decisions on sanction are reasonable. Claims to the Employment Tribunal have increased by 100% since the abolition of fees. Employees no longer have anything to lose in submitting claims to the Tribunal and the costs of defending claims can be significant. The current cap on compensation can be awarded in unfair dismissal claims is £83,602 with compensation for discrimination being unlimited. Average awards range from approximately £8,500 to £1.7m.

It is fair to say that there is a significant amount going on in the UK and the EU at present with uncertainty as to how this will affect business going forward. Therefore it is important to look at ways to protect your business and prepare for what’s to come including getting all your contracts, policies and procedures in place, getting advice and support early from the start and following process. This will give your business the best chance to allow it to run smoothly and if not to avoid claims then at least be able to successfully defend them.

For more information contact Dawn Gallie, Head of Employment on 01935 846233 or