1. Doing nothing then over-reacting – passive/aggressive behaviour
A passive/aggressive Manager will do their best to avoid giving any kind of direct critique of job performance. Employees may receive little to no feedback especially if their performance is of concern. Rather than complete an explicit dos and don’ts for employees, this Manager gives a vague set of guidelines, derived from a formula that only they know. This is the passive part of the equation as they will not directly deal with the concern. If anyone begins to stray from the picture they have in their head, they become upset, possibly invoking new, stricter rules that are even more unnecessary or unclear. The aggressive part of this management style means that they will put up with things but when they have finally had enough they will just want to get rid of people. They forget about policies and procedures and the law; they just want immediate action. Such Managers need to be re-educated that by addressing concerns early on, and being honest about the issues, rather than avoiding them, means that employees will flourish and stay.
2. Thinking redundancy is an easier option than dealing with a poor performer
There are rigorous legal procedures for handling redundancies. The exact process depends on the number of staff involved. If fewer than 20 redundancies are likely, you will need to plan and enact a specific set of steps. You must: consult each of your staff individually, brief anyone that is impacted by the proposed changes (not just those that at risk), choose your redundant people fairly usually with defined criteria, give the correct notice and pay, handle appeals, and so on. It is a time consuming task and Tribunals have ‘got wise’ to dodgy redundancies which seemed easier than managing poor performers properly.
This approach is often used by passive/aggressive Managers who believe that this is an easier option than actually dealing directly with a poor performer. It is most definitely not an easy option as a redundancy procedure is very detailed and requires the same if not more effort than performance managing the individual.
3. Leaving people on sick leave for months with no contact
We still hear from clients who have not spoken to their long term sick people since the day the employee phoned in sick, either because they do not know what to say or because they believe it would be wrong to make such contact for some obscure (non-existent) legal reason.
The experience of all the experts in this subject is that, regular communication is key to ensuring that people return to work, and that the longer people are off work the harder it is to get them back to work. Yes you need to be sensitive, but that should not be an excuse for doing nothing, which sends a message to the employee (and a Tribunal Judge) that you just do not care. Find out what communication works best for that employee and use it, regularly.
4. Not suspending when something very concerning comes to light
Some Managers immediately suspend an employee when faced with allegations that might amount to a case of gross misconduct. Whilst this is not always the right thing to do, and may be considered to be an unnecessary ‘knee-jerk’ reaction, in most cases it is appropriate when:
- there is a potential threat to the business, vulnerable persons or other employees;
- it is impossible to properly investigate the allegation if an employee remains at work (for example because they may destroy evidence or influence witnesses);
- there are commercial risks, e.g. if the employee is suspected of breaches of confidentiality or competitive activity;
- to protect the individual from the actions of others;
- there would be an adverse impact on team morale;
- investigation can be done more thoroughly or without employees feeling that they are being watched by the alleged offender;
If suspension is necessary, you need to ensure that:
- It is carried out in a fair and reasonable way, which means keeping it under review and making sure it is not unnecessarily lengthy, and that the employee continues to be paid and in receipt of their normal benefits;
- You give clear instructions as to the employee’s rights and obligations during the period of suspension (e.g. they are not permitted to take other work, but they must not to report to work or not contact colleagues/clients);
- You keep the details of the suspension as confidential as possible, as any inference of “guilt” may prejudice a future disciplinary process.
The danger of not suspending when concerns comes to light is that it is very difficult later on to try to fairly justify that the person’s conduct amounted to gross misconduct, sufficient to argue summary dismissal when the reality is that you kept them working as normal up until the time of the disciplinary.
5. Managers not reading or following their employment policies and procedures (Handbook)
An employee is more than likely to have read the procedures applicable to their situation, especially if they are aware that they are now subject to a formal procedure, so it will not put the Manager in a good light, especially if the employee subsequently appeals any detrimental action taken against then. Any person hearing an appeal, who becomes aware that procedures were not correctly followed, is likely to feel that the resultant action will need to be over turned, thus putting the Manager into an embarrassing situation.
Worse still, if Managers/Supervisors only apply policies occasionally, or have a tendency to overlook certain ones, their actions may easily be perceived at best as inconsistent and at worse discriminatory, especially in regards to major employment decisions like promotions, disciplines and terminations. Failing to follow procedures is the most common cause of employers losing Employment Tribunal claims.
6. Lack of documentary evidence, especially on informal decisions/actions
We are constantly telling Managers to deal in facts rather than feelings. Written documentary evidence such as notes of a meeting, whilst some of the content may ultimately be disputed, is generally regarded as fact.
Employment Tribunals like written evidence and if you have not got it they may choose to believe that events did not happen or did not happen in the way that you remember them happening. We all wish we had said or done something about a particular event but sometimes that wish becomes only a memory and a Judge may choose to believe that you are remembering what should have happened rather than what did happen. Even worse he or she may just believe you are lying, so if you can lie about that then maybe you are not telling the truth about other things!
7. Failure to address new poorly performing employees promptly
If a Manager continues to retain a new employee for a prolonged period of time despite poor attendance records, poor performance and multiple cautions, trouble is on the way. When these employees are finally dismissed, they are the most likely to sue, because they thought they were doing ok and will look for a reason to prove it and if no performance meetings happened and there are no records of those meetings, they are likely to conclude that it must be something such as discrimination. Yes you do have two years to make a decision without risk of an unfair dismissal claim, but if you have trained people properly and given them clear direction, but they are still not meeting your standards it is probably best to let them go sooner rather than later.
8. Not raising performance concerns honestly, openly and completely
Sloppy, incomplete performance evaluations do nothing to help the employer or the employee and often lead to trouble later on. Without a good method of evaluation (i.e. a rating scale, review schedule or clear notes recording performance discrepancies, etc.) managers expose themselves to accusations of unfair treatment and discrimination. We often come across apparently poorly performing employees who have either never been told that they are under-performing, or worse still have a history of good performance appraisals on record. Employees cannot improve if they do not know there is a problem and employers cannot show that they have tried to remedy under-performance if they have done nothing to get an improvement.
9. Not investigating complaints/concerns thoroughly
Failing to report complaints (especially regarding harassment and discrimination), failing to conduct an adequate investigation, and failing to take proper remedial actions are detrimental to the workplace. These mistakes not only damage employee morale but also make the organisation a prime target for a Tribunal claim which is likely to be successful.
If an employee puts a complaint in writing, and that includes email, it is very important that the Manager follows up with the employee, and asks them what are they looking for by way of resolution. Doing nothing or ignoring the complaint altogether can make matters far worse. Once people go to the trouble of formally raising concerns they have the bit between their teeth and are unlikely to let the matter go, however, that does not mean that the matter cannot be dealt with quickly and even informally, but if not the problems fester and can then blow up into a much bigger problem.
10. Setting a poor example to others
Employees will follow your lead as to what policies to follow and which to ignore. A Manager who ignores for example good health and safety practice demonstrates a poor health and safety culture that could lead to people getting hurt or injured. A Manager that is a bit of a bully is likely to encourage others to also bully.
A Supervisor/Manager represents and acts on behalf of the employer and therefore should be the ideal role model of what the organisation stands for. We know that no-one is perfect but such people cast a long shadow and it will not only impact on morale, engagement and labour turnover but not look good in an Employment Tribunal.
