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Make and advise of the decision

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, which has been held. Now you need to make a decision.

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

In making your decision take into account any explanation, defence or mitigation put forward by your employee. You may have to weigh up what the truth of the matter is.

In terms of whether an event occurred or not, the test of culpability is not “beyond reasonable doubt” but “reasonable belief”. For example, if you genuinely believe it is more likely than not that the employee was insubordinate, you have carried out a thorough investigation, and have some evidence to support your belief then it would be fair to take disciplinary action.

If the likelihood of the event is only 50:50 then you don’t really have enough evidence to make a safe decision and it may be wise to give the employee the benefit of the doubt (or conduct further investigation).

If you do decide on a disciplinary warning then you have to decide the level.

In the case of troublesome behaviour one written warning alone is usually sufficient. But if the behaviour continues after the warning then you will need to go through this process again and issue a final warning.

However, if you genuinely believe, for example, that their behaviour could lose significant business for the company, should the behaviour be repeated, then a final warning or even dismissal might be appropriate. As above, consider any explanations offered, mitigating circumstances and any contrition on the part of the employee.

Any difficult employee who remains troublesome after two warnings should be seriously considered for dismissal.

Keep in mind that if disability is raised (in the circumstances of an employee with mental ill health particularly) you will need to decide whether any warning at all is appropriate. You may also have to ask if you can (or continue to) make adjustments, or whether any disability is sufficiently substantial and material to justify dismissal. In the latter event you should review that very carefully first.

Finally advise the employee of the decision.

On the whole this is best done face-to-face. It forces you to own the decision (which is important) and the employee’s reaction can be valuable to see.

Repeat the charges, acknowledge the explanations, and any mitigation, and explain how they have been taken into account.

Advise of the decision, if there is no further action you should be absolutely clear about this. If it is a “warning”, say so and state which level it is. Be specific about the improvements required. Advise how long the warning will be on the record. Advise of the consequences of no improvement. Advise of the right of Appeal to whomever your procedure requires, within what time and ask that the appeal should state the grounds of the appeal. All this needs to be confirmed in writing by means of a warning letter.

In the case of dismissal you cannot prevent an employee taking out an Employment Tribunal claim but if the employee’s case is weak and you’ve “ticked all the boxes” future problems are very unlikely.

Malcolm Martin FCIPD

Author Human Resource Practice

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