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Our first strategy was to understand the difficult employee. Nonetheless there can come a time when a more proactive approach is appropriate.

Tackling a troublesome employee can make a big difference to competitiveness, here we look at strategy two…..

Strategy two – the 9 month rule

When I was tutoring HR professionals we formulated a 9-month rule. That is, if an employee had had more than two “unfortunate incidents” in a nine month period then it was time to “consider the employee’s position”. These professionals had a unilateral view. If employment continued beyond nine months then the likelihood was that new unfortunate incidents would continue to arise indefinitely.

Another HR Manager told me how he had to tighten up on his company’s bereavement leave. This was because it included grandparents. Some employees had a remarkable number of grandparents that had passed on.

The nine month rule is most effective for employees who have less than 24 months service. It can be straightforward:

You can usually dismiss the employee although there some important points that it would be wise to watch:

  1. Check the service is under 24 months (or 23 months and three weeks to be safe). It is continuous service that counts. You may have “inherited” the employee from another business undertaking. In some cases they may have worked for you on a temporary contract first. Both these could be part of continuous service and must not be overlooked.
  2. Decide (if you have not already done so) the true reason for contemplating dismissal. It could be reliability, a negative attitude or just poor performance. As always it is better if you have cogent evidence to support your reason but, in most cases it is not essential.
  3. Hold a meeting. This is the point at which you tell the employee you are contemplating dismissing him or her. I recommend you convene this meeting in line with your disciplinary procedure, giving notice, the opportunity of accompaniment and providing any evidence you may have.
  4. Ask the employee for an explanation and listen. This is really important. What you need to listen for (but not prompt) are reasons that related to a “protected characteristic”. The ones most likely to be relevant, risky, and ideally not apply, are:
  5. Pregnancy
  6. Disability, including health and mental health
  7. The health or disability of someone for whom they have to care
  8. Harassment by others in your employment (or by you!)
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  10. Provided nothing discriminatory applies then you are as safe, as you are ever likely to be, to dismiss the employee. They will have no unfair dismissal rights.
  11. If something discriminatory does arise then you have to decide whether your true reason for dismissal is completely unrelated to any of these “protected characteristics”. If you cannot demonstrate this, then there is a risk and you should follow a full procedure.
  12. If in doubt it would be wise to follow the same strategy as you would if the employee had 24 months service.

Next month we’ll look at the second situation, where the troublesome employee has 2 years (24 months) service.

Malcolm Martin FCIPD

Author Human Resource Practice