How to deal with a difficult employee #4

This is a difficult employee to whom you have spoken countless times. You’ve established that there are no underlying personal problems. He or she has been formally invited to a meeting. The next step is a disciplinary hearing.

You should always conduct a disciplinary hearing with another person present. This could be a fellow manager, HR Adviser (internal or external). Ideally, you should also have an experienced note-taker.

At the outset note the time and state the reason for the meeting as on the “invite” letter. If the employee does not bring a work colleague or TU Rep, confirm that he was offered the opportunity and that he is happy to proceed without one.

The person who accompanies the employee does not have the right to answer questions on the employee’s behalf. This can be difficult to enforce in practice but on key points you can insist the employee answers your questions.

At the meeting you must put before the employee all the matters that concern you and, if any are omitted for whatever reason, they must not form a reason or part of a reason for any subsequent decisions. If there are several points it is wise to go over each separately.

These concerns may include “beliefs” about the employee’s part in any events and about their behaviour. But it is very important to avoid introducing inferences about intentions or personality. The rule is, stick to behaviour.

Start with summarising (verbally) the concerns that are leading you to take disciplinary action. It may be useful to summarise any explanations the employee may have given at any Investigation meeting(s).

Refer to any disciplinary rules that may be relevant to your concerns and the sanction that may be applied. In the context of a troublesome employee, a first written warning is usually sufficient. Dismissal on the first hearing (or even second) is not likely to be an appropriate sanction.

Does the employee have any more to say? Don’t encourage him to say anything for the sake of it, but you may need to prompt him if he just clams up. For example, does he agree with your summary? Does he agree with any explanation that you have just summarised?

You may need to insist that the employee does hear all the concerns, beliefs and charges. If the discussion gets heated or if you feel angry, adjourn. This provides an opportunity for either or both parties to calm down. It also gives the opportunity to discuss the progress of the hearing and separate fact from emotion.

The employee might deny the charges. If so, ask him for his explanation of the grounds that gave rise to your beliefs. For example, quote what was said in the investigation. Listen and note the responses. If the employee does not suggest further explanations you can only draw conclusions from the information that you have.

The employee might raise grievances. This often happens. Note them and tell them that they will be dealt with separately. If they have implications for the concerns that you have, the grievances may need to be dealt with before disciplinary action.

Ask for any mitigating circumstances. Employees who are dealing with major life events may behave out of character. Listen and take note. Occasionally an employee might cite a disability, such as depression, in mitigation. Don’t dismiss such information out of hand.

Go back over your notes and summarise the discussion that you had one piece at a time. Ask them if there is anything else to be taken into account at each stage or anything they want to change. Listen and note as appropriate.

The person who accompanies the employee does not have the right to answer questions on the employee’s behalf. But you should give the person who accompanies your employee the opportunity to “state the case” on behalf of the employee.

Ask the employee if they would like to add anything further before a decision is made.

In the light of all the information, you have to make a decision about the seriousness of their behaviour, or indeed whether they have “transgressed” at all.

Tell the employee that you are adjourning to make a decision (which may come after looking into any grievances).

It is good practice to have an adjournment of 24 hours before making a decision.

We will look into the appropriate matters to be considered, before making the decision, next month.

Malcolm Martin FCIPD

Author Human Resource Practice

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