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Is it fair to sack someone for in this instance?


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I run a small business with 7 staff.

 

Last week by chance I noticed a member of staff was on the internet for personal reasons during the work time (he was on a football forum). I was having his monthly appraisal later that day, so I decided not to say anything until then. At the appraisal I gave him clear verbal warning, reminded him of the company's internet policy (personal use should not interfere with work), he accepted the warning and apologised and so I thought this friendly word had worked. In regards to his work performance he has not hit his main target and has in fact gone backwards over the past 3 months (he's been with us 12 months), and he was warned at the start of september that if his performance did not improve as we had expected it to, this could start a formal disciplinary process.

 

Next working day by chance I had to go onto his work email account (common practice in the office if someone is out) and it was clear he has carried on with excessive personal emailing. I spoke to him about this again and had a disciplinary meeting with him and his representative, and now he claims that he was unsure of the policy (even though it does state email as well as internet use), and that in any event he believes his extensive personal internet use does not effect his work - even though he has not achieved target! I've run my company for 10 years and my opinion is that it is effecting it, which is why I told him to cease using it for personal reasons.

 

I think our current internet/email policy is clear enough for any reasonable person, the rest of the staff appear clear about it and the one incident I had similar with another member of staff 3 months ago was dealt with by having a "quiet word" and she is now flying, so I dont want to change it and clamp down on everyone or start monitoring everyone or anything heavy, but this guy is adament he hasnt done anything wrong, or was aware he could be sacked for it. Over 50% my staff's time is spent searching the internet for work purposes, but I dont have the resources, or inclination, to monitor this guy's personal use everyday so feel like a final written warning isnt workable.

 

Can i just sack him for insubordination as he didnt follow my instruction? i.e. instant dismissal for gross misconduct as listed in our contracts?

 

Or is that too harsh?

 

Thanks

Donna

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have you issued a principal statement of terms and conditions of service and an employee handbook ?

has he read it and signed it ?

does he have a copy of both?

does it specifically state that misuse of internet in company time is gross misconduct ?

go on to ACAS website and download code of practice

ring them if you wish to take it further

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Yes, terms of conditions have been issued on start along with all company rules policies and rules/policies in a handbook, as I want to be a good employer! We have already adopted and followed the ACAS code of practice for disciplinary procedures, which is why the quiet word approach is always tried first.

 

Misuse of the internet is not specifically listed as Gross Misconduct, although failing to follow a clear and lawful instruction is?

 

His colleagues (both of less experience and more experience with the company) are clear on the internet/email policy, and the policy does refer to the disciplinary process in cases where it is abused, yet this guy has admitted that he constantly has non work related internet site browsers open all day long?

 

My problem is that as a micro business we dont have the resources to check if a final written warning will be adhered to. As mentioned, the majority of my employee's time involves using email and internet, so I need to have trust that they will be able to be able to sensibly judge what is unreasonable, and I just dont trust this guy will heed a final written warning, as was adament in his disciplinary meeting it hasnt impacted on his work, despite being below target?

 

I know employees rather than employers typically post on this forum, but we are not a massive company, and so I'd really appreciate people's views of as to how reasononable they think it is to dismiss rather than issuing the final written warning in this instance? We are a small company stuggling due to the recession, and I'm scared the distraction of a tribunal could send us under, but I have to think of my other employees and cant risk employing people who arent pulling their weight? Help!

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I run a small business with 7 staff.

 

Last week by chance I noticed a member of staff was on the internet for personal reasons during the work time (he was on a football forum). I was having his monthly appraisal later that day, so I decided not to say anything until then. At the appraisal I gave him clear verbal warning, reminded him of the company's internet policy (personal use should not interfere with work), he accepted the warning and apologised and so I thought this friendly word had worked. In regards to his work performance he has not hit his main target and has in fact gone backwards over the past 3 months (he's been with us 12 months), and he was warned at the start of september that if his performance did not improve as we had expected it to, this could start a formal disciplinary process.

 

When you gave him the warning, did you give him advance notice that this was to be a disciplinary hearing and give him the right to be accompanied? Did you confirm this in writing and give him the opportunity to appeal?

 

Next working day by chance I had to go onto his work email account (common practice in the office if someone is out) and it was clear he has carried on with excessive personal emailing. I spoke to him about this again and had a disciplinary meeting with him and his representative, and now he claims that he was unsure of the policy (even though it does state email as well as internet use), and that in any event he believes his extensive personal internet use does not effect his work - even though he has not achieved target! I've run my company for 10 years and my opinion is that it is effecting it, which is why I told him to cease using it for personal reasons.

 

Clearly by this point you were holding a formal disciplinary hearing, however the first one (the appraisal) does not appear to have given the employee the opportunity to absorb what was happening or to prepare a case.

I think our current internet/email policy is clear enough for any reasonable person, the rest of the staff appear clear about it and the one incident I had similar with another member of staff 3 months ago was dealt with by having a "quiet word" and she is now flying, so I dont want to change it and clamp down on everyone or start monitoring everyone or anything heavy, but this guy is adament he hasnt done anything wrong, or was aware he could be sackedlink3.gif for it. Over 50% my staff's time is spent searching the internet for work purposes, but I dont have the resources, or inclination, to monitor this guy's personal use everyday so feel like a final written warning isnt workable.

 

Can i just sack him for insubordination as he didnt follow my instruction? i.e. instant dismissal for gross misconduct as listed in our contracts?

 

Or is that too harsh?

 

On the assumption that the first 'warning' may not have been applied in accordance with minimum disciplinary procedures, to dismiss at this stage may well be deemed harsh. Up until last year, this may have been sufficient in itself for the employee to be determined unfarly dismissed automatically, simply for the (potential) breach of procedure, this is no longer the case, and although in theory, you would be in the clear, it does leave the door ajar for action on a number of points.

How are you able to measure that the use of the internet is a contributory factor in his poor performance? How is this scored? To what extent are you able to measure that his internet and email useage is excessive when compared to others - have you counted the number of personal emails of others, or looked at the number of non-related websites accessed? You would need to do at least this in order to demonstrate that you are acting fairly and with due regard to the actions of others.

 

Yes, terms of conditions have been issued on start along with all company rules policies and rules/policies in a handbook, as I want to be a good employer! We have already adopted and followed the ACAS code of practice for disciplinary procedures, which is why the quiet word approach is always tried first.

 

Misuse of the internet is not specifically listed as Gross Misconduct, although failing to follow a clear and lawful instruction is?

 

But if you have a already have a specific policy concerning personal internet use, and does make mention of the fact that misuse might lead to disciplinary action, then it does not necessarily need to be referred to again in the list of Gross Misconduct examples. Your policy document relating to GM should though include the statement that the list is 'not exhaustive'.

 

His colleagues (both of less experience and more experience with the company) are clear on the internet/email policy, and the policy does refer to the disciplinary process in cases where it is abused, yet this guy has admitted that he constantly has non work related internet site browsers open all day long?

 

Then he is in clear breach of company policy? The caveat is that he can measure his entitlement to use the fact that you allow other employees to do the same would be unfair. 'Abused' would to my mind need to be more clearly defined.

 

My problem is that as a micro business we dont have the resources to check if a final written warning will be adhered to. As mentioned, the majority of my employee's time involves using email and internet, so I need to have trust that they will be able to be able to sensibly judge what is unreasonable, and I just dont trust this guy will heed a final written warning, as was adament in his disciplinary meeting it hasnt impacted on his work, despite being below target?

 

Surely you can be the judge of that, not him, so providing that his performance can be measured as below par, using quantifiable measurement against the scores of others, then you may reasonably suggest that he will not be permitted to access personal websites unless during breaks or outside of working hours.

 

I know employees rather than employers typically post on this forum, but we are not a massive company, and so I'd really appreciate people's views of as to how reasononable they think it is to dismiss rather than issuing the final written warning in this instance? We are a small company stuggling due to the recession, and I'm scared the distraction of a tribunal could send us under, but I have to think of my other employees and cant risk employing people who arent pulling their weight? Help!

 

We do get employers as well as employees asking questions, and this is welcomed as at least it demonstrates that far from just acting blindly, at least some employers may be seen to be caring and responsible. At the end of the day you are running a business, and particularly in the current climate you are entitled to expect certain levels of behaviour and workrate from your employees. Providing that you act fairly, it is absolutely right that you should be able to discipline a member of staff who is refusing to accept company policy or abide by reasonable instructions of his employer. HOWEVER - Your internet and email policy seems to be a bit hit and miss (although you haven't specifically quoted it). One thing that does need to be pointed out is that (whether you have the resources to check or not), this must be stated in the policy - to not state that company resources (internet, email and phone use) may be monitored, will likely fall foul of the Article 8 of the Convention on Human Rights, the Regulation of Investigatory Powers Act and the Data Protection Act just for starters.

IMO, this may all be a little premature to dismiss on the basis of internet misuse - more appropriate might be to look at capability and performance monitoring. You have already highlighted poor performance as an issue, together with insubordination, so can implement a programme of close monitoring with clear steps for improvement and a requirement that (providing his performance is measurable as being sub-standard), he is not to use the internet for personal use until notified that he has met the criteria for improvement. If things improve, so much the better, but if not then you will have him on a Final Warning for performance issues and may dismiss on those grounds.

Sadly it may be necessary to revisit the internet policy in order to 'remind' all concerned that use will be monitored, and anything deemed to be inappropriate use or where personal use is deemed to be affecting work levels, will attract close attention and may lead to disciplinary action.

 

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Thanks for the response sidewinder, your points are really appreciated and have given me much food for thought:

 

When you gave him the warning, did you give him advance notice that this was to be a disciplinary hearing and give him the right to be accompanied? Did you confirm this in writing and give him the opportunity to appeal?

 

In regards to your first point in respect of the monthly appraisal where the I spoke to the employee in regards to being on the football forum during work time, the intention of this was the "friendly word approach" to make clear his conduct was not acceptable, but as I was not giving him a written warning I did not give him advance notice that this was to be a disciplinary hearing and of his right to be accompanied. In this respect and having re-read the ACAS code, I am still slightly confused over this, as my intention was to nip the problem in the bud, but ACAS does say that at "all stages" the employee has the right to be accompanied/appeal etc, so in theory I should have informed the employee of this? I do see that if I had done this, it would have given more weight to the meeting and in hindsight would have removed any doubt in the employee's mind that their conduct was unacceptable, and I will bear this in mind when addressing issues with anyone in future. On the other hand, because the employee agreed and apologised, it seemed reasonable to assume the friendly word had worked and that he had understood that his conduct was unacceptable.

 

What I did say him in the appraisal was that as I was concerned that the extent of his personal use of the internet had impacted on his work as he was measurably below a set target in comparison to his colleagues. His performance had been raised in previous appraisals, to the extent that I had said in a previous appraisal that failure to achieve target would begin a formal disciplinary process. Because of this, I gave clear instruction that he was not to use the internet for personal use in working hours (excluding lunchtimes). This was over and above the wording of our internet and email policy which allows personal use "providing it does not impact on your work", as I felt that the use had impacted on his work, although he disagreed that his personal use of the internet had been the cause of his underperformance, but could not identify any other issue, including lack of training, that could be the cause. This last point appears to be the issue, i.e. that he disagreed with me as to whether the personal use had been the cause of his underperformance. That he apologised and said he would not use the internet for personal use, again in hindsight, seems at odds with this, i.e. why apologise if you have nothing to apologise for? Perhaps I took this apology at face value when I should have realised the matter had not been resolved (as obviously it hadn't!).

 

When it became apparent that he had subsequently continued to use the internet for personal use during working hours, I then suspended him on full pay, held an investigation, and then wrote to him saying that he would have a disciplinary hearing in regards continuing to breach company policy and failing to follow a clear instruction and provided 3 days notice, and said that he had the right to be accompanied, and provided all information compiled during the investigation.

 

Clearly by this point you were holding a formal disciplinary hearing, however the first one (the appraisal) does not appear to have given the employee the opportunity to absorb what was happening or to prepare a case.

 

As mentioned above, I agree with you that the appraisal "warning" did not give him this opportunity, however I think that the steps I took in terms of suspension and writing to him clearly did? Apologies, I did not specifically outline this in my original post which you replied to.

 

On the assumption that the first 'warning' may not have been applied in accordance with minimum disciplinary procedures, to dismiss at this stage may well be deemed harsh. Up until last year, this may have been sufficient in itself for the employee to be determined unfarly dismissed automatically, simply for the (potential) breach of procedure, this is no longer the case, and although in theory, you would be in the clear, it does leave the door ajar for action on a number of points.

 

How are you able to measure that the use of the internet is a contributory factor in his poor performance? How is this scored? To what extent are you able to measure that his internet and email useage is excessive when compared to others - have you counted the number of personal emails of others, or looked at the number of non-related websites accessed? You would need to do at least this in order to demonstrate that you are acting fairly and with due regard to the actions of others.

 

In regards to this, I would now be dismissing without warning on the basis that he has not followed a clear management instruction, therefore for gross misconduct. At the disciplinary meeting he was still adamant that the personal internet "overuse" had not impacted on his work. My opinion is that this is why the instruction was not followed, i.e. his view was that he was not in the wrong (despite apologising) is what led to the insubordination. In terms of mitigation for the employee, the continued personal internet use was sending a series of lengthy personal emails during work hours, as opposed to being on non work related websites. The employee claimed in his disciplinary meeting that he did not realise that emailing was included in personal internet use, although he is highly intelligent so this seems a bit suspect. And after all emails are of course sent via the internet!?

 

In respect of whether I was correct in originally deciding that his personal internet use had impacted on not achieving a measurable target, I have not reviewed the personal internet use of other staff for two reasons, firstly they are not below target so I have no reason to believe that this is an issue for them (i.e. whatever the level of others personal internet use, it is not apparent it is impacting on their work as they are achieving the measurable target, so they are within personal internet use policy guidelines?), and secondly, its been so time consuming enough collating evidence of the use of just one member of staff - I simply dont have the time or resources to do an audit of everyone's use.

 

Our disciplinary rules include the "not exhaustive" disclaimer, and our internet policy regards monitoring has been drafted in line with DPA requirements.

 

IMO, this may all be a little premature to dismiss on the basis of internet misuse - more appropriate might be to look at capability and performance monitoring. You have already highlighted poor performance as an issue, together with insubordination, so can implement a programme of close monitoring with clear steps for improvement and a requirement that (providing his performance is measurable as being sub-standard), he is not to use the internet for personal use until notified that he has met the criteria for improvement. If things improve, so much the better, but if not then you will have him on a Final Warning for performance issues and may dismiss on those grounds.

 

In summary, I would be dismissing without notice on the basis of insubordination. As mentioned, my staff's work means that they use the internet for work (including social networking sites) more than 50% of the time, and as the employee is adamant he has done nothing wrong in in regards to the use plus that he originally apologised but continued to , means that I am not confident a final written warning would be adhered to, and due to the nature of our work it would be difficult to police on a practical basis.

 

No final decision has been made though, and if I did issue a final written warning, could the employee still be dismissed without notice if the employee simply goes through the motions? Or would it be a case of dismissing with a further 4 weeks notice? One of the guy's best friends in work (and their nominated representative in the disciplinary) has told me that he plans to move on at Xmas as he wants to go travelling, some of the emails I have seen back this up. I'm worried that he will continue to underperform as he has already made his mind up that he is leaving anyway and just wants to string it out, and we are struggling so if this is the case its potentially jeopardising everyone's jobs as the underperformance will be combined with further distraction of my time and resources involved in overseeing further disciplinary action. On the other hand, he may change his mind and decide to stay with the company, and if he gave his all then I dont have a problem with this as I believe he does have the potential to contribute.

 

PS - thanks for the comments regarding employers posting here. I must say that reading some of the other threads it has been an eye opener, as there does seem to be a fair few people who appear to be of the belief that they are justified in "getting away" with as much as possible in work. On the other hand some of the treatment of employees by their employers is simply disgusting! I'm still of the belief that there are bad apples in both camps, but on the whole most people want to do their best in their jobs, and employers who try to treat their staff well and are fair will (on the whole!) benefit from a committed workforce, who will do way over and above their employer's expectations.

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Hi drowning 123

 

What a really interesting thread from the employer's perspective. One thing that sprung out at me was the issue of "targets" that you set. Everyone is different and some employers set unrealistic targets for their employees to meet. Comparing one person with another is in my view unfair as everyone has different abilities and attributes, so it is really important to objectively compare.

 

I also agree there is good and bad in both camps but in my experience as the company gets bigger and HR becomes involved employers lose sight and feel for the lower rungs.

 

I hope you survive, the country needs employers like you.

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I am going to break one of my "rules" and advise an employer. So far your process has been exemplary (which is the reason I am advising). You have done nothing at all wrong at any stage, as far as I can see, and that includes the "friendly warning" - which is good practice and does not need to be notified or represented at. These rules only apply to formal stages.

 

So here is my advice - and given the unusual amount of detail you have provided I am going to break another of my "rules" - you can take this as legal advice in the formal sense of the phrase. You almost certainly have grounds to dismiss and any dismssal would almost certainly be upheld. Assuming you have told the truth and can evidence it. However, these sorts of hearings (if it went to tribunal) can have some degree of "perversity" because one can never be 100% certain of what a tribunal will decide. Having the law on your side and doing things correctly isn't quite enough - you also have to convince three judges!

 

So here, for what it is worth, is my advice. Issue a final warning, and a very detailed one at that. By detailed, I mean - explain the full context (the friendly warning, the fact it was ignored, the fact that excessive use of the internet continued and led to an invesitigation which found....... - fill in your own blanks). Explain that you have heard what the employee has to say about this (so he didn't know about the policy - yes, he did, you gave it to him and you brought it to his attention informally); he didn't think it affected his performance (you don't agree but in any case it isn't up to him to decide that - it is up to you and you do think it affects his performance); he didn't know it included e-mail (oh don't even go there - I didn't have you pegged as that stupid - or words to that effect:-)). You should also point out that you have considered the fact that he has been using the internet for personal use during working time for which you pay him to work, and that claiming to be working when one is not is, effectively, theft.

 

Then tell him that you have very carefully considered the matter, and you have given very serious consdieration to dismissing him without notice for disobeying a direct management instructionb and for excessive use of the internet for personal purposes. However, you have decided, whilst rejecting all his mitigation as unacceptable, to be lenient on this occasion and issue a final warning for gross misconduct, which will remain on his file for 12 months and which may be mentioned in any references during that period.

 

Then state that he is banned pemanantly from any personal use of the internet, and that any such use of any kind will result in his dismissal. You should also bring to his attention that any other misconduct will also result in his dismissal.

 

You should then tell him that your are putting him into a process of reviewing his performance (and if you haven't got such a process, get one fast!) to address concerns about his failure to meet targets, and that you will be carefully monitoring his progress to ensure that he is not distracted from his work again.

 

If you do this, then provided you continue to record all evidence and follow processes correctly, then you can be 110% certain that a tribunal will find for you. Hopefully, he will realise that he needs to amend his behaviour vis-a-vis a lot of things, and will apply himself. In which case it is a win-win - he gets to keep his job and clear his record (in 12 months), and you get an employee who is working harder. If his performance does not improve, then it will take a few more months to dismiss - giving him fait time to address his performance issues - but you will have a clear dismissal on capability of an employee already on his final warning, which is about as good as it gets. And if he even sneaks a look at the internet or e-mail for personal reasons, you can also dismiss.

 

Oh, and you might include warning him that both his incoming and outgoing mail will be monitored for personal use, so he had better make sure that he notifies everyone in the world that his works address is off limits!

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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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I think that my overwhelming feeling here is that you are a business with a value for the staff whom you employee. It would appear that you have used appropriate advice from a variety of sources, and from the very limited overview of the situation that we have been given, it does seem that this particular employee has not heeded the advice given prior to formal disciplinary action. There remains the issue of targeting and how the performance of one may accurately be judged against another, but ultimately if you are the business owner you have a far better insight into that and will know best - from your imput so far I would very much doubt that it could be considered unfair.

 

As a forum, by the very nature of it, the vast majority of people posting will seek a bias towards the employee's point of view, and (often justifiably) a means by which to challenge what is perceived as unfair treatment. We are not though exclusively on the side of the employee, and (as you have already gathered) very often suggest that the employee will have to face facts and move on. It is often forgotten that employers have to run the business efficiently and where possible at a profit in order to keep people employed, but you are absolutely true that there are some shocking examples of mistreatment and a certain arrogance that basic legal rights do not apply in their circumstances - many times from large well known organisations. Advice (as you have found) costs nothing and the ACAS website and phone number are invaluable free resources.

 

So - back to your situation. I take on board the point about the initial (friendly) warning, and the question that needs to guide your actions is whether if you were to go straight to dismissal, the employee would be in a position where he could claim that it was unfair? If you have confidence in your performance measurement and that this is below reasonable expectations, can demonstrate that you have given clear instruction not to use the internet (or email) during work time and this has been ignored, then you would almost certainly be justified in issuing either a final written warning or dismissal BUT would have to be clear as to precisely the stated grounds for doing so.

 

Misuse of the internet? In what way 'misused'? How can you demonstrate that this was a contributory factor against poor performance? To what extent have you measured time spent on the internet against that of others who are performing?Has there been a deterioration in the work, or has it been consistently poor? Was the employee able to demonstrate any other factors which may be unknown to you? Did he have the opportunity to do so? Home issues? Relatonships? Learning difficulties?

 

Insubordination? Failure to abide by a clear instruction? As you say, he is (or appears to be) intelligent so should be aware (and if not then he is aware of the policy) that there are certain limitations concerning internet use (including email). Has he at any stage compalined that your criticism should equally be applied to others? You are treating this as an act of Gross Misconduct - when you suspended the employee, was he given precise reasons and warned that this might result in dismissal. Gross Misconduct is an act which destroys the fundamental employer/employee relationship - is that the case here?

 

Ultimately, your call. You are a small business seeking to operate with a small team in difficult economic circumstances. You have a right to expect that staff contribute fully and the effect of one not doing so could be severe. It is only right that you use policy, correct procedure and all available sanctions in order to pursue the business' interests. It is best to look at this not only from your side, but also from the point of view of a Tribunal. Was dismissal justified? Was it appropriate and in accordance with the employee's contract (remember contracts aren't just written - certain terms may be implied and the general policy of accepting a certain amount of internet use during working time is permitted (but can certainly be withdrawn with a formal demand not to), is a little woolly regarding equitable treatment. Have minimum disciplinary proceedures been followed? Are there any previous instances of similar behaviour by others which have not resulted in dismissal?

 

No final decision has been made though, and if I did issue a final written warning, could the employee still be dismissed without notice if the employee simply goes through the motions? Or would it be a case of dismissing with a further 4 weeks notice? One of the guy's best friends in work (and their nominated representative in the disciplinary) has told me that he plans to move on at Xmas as he wants to go travelling, some of the emails I have seen back this up. I'm worried that he will continue to underperform as he has already made his mind up that he is leaving anyway and just wants to string it out, and we are struggling so if this is the case its potentially jeopardising everyone's jobs as the underperformance will be combined with further distraction of my time and resources involved in overseeing further disciplinary action. On the other hand, he may change his mind and decide to stay with the company, and if he gave his all then I dont have a problem with this as I believe he does have the potential to contributelink3.gif.

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If you were to issue a FWW giving clear instruction as to the level of behaviour expected (improvement in work rate, not using internet or email for personal use) and this was not followed, then certainly summary dismissal would be appropriate without notice.

 

If your internet policy is written so as to permit monitoring, why not challenge him on the matter of going travelling? Question the level of commitment to the job. It does sound that if he were able to give that commitment and turn his performance around you would be happy to keep him on. If he does go travelling, is it the type of job that you could employ a temporary member of staff to cover whilst he did? Would that commitment on your part give a greater sense of loyalty to him in terms of his work now?

 

Just my ideas, and I know that you already have much to think about with this, but as I say, your call!

 

I actually started writing this long before the post above, and I think SarEl has summed up much more succinctly than I, but basically you are already on reasonably safe ground already, although you may decide that a FWW is more appropriate, it may work to your advantage and save costs of re-employing, and you can attach very strict conditions.

 

Let us know the outcome!

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Hello Donna. I would just like to add my voice. You sound like a good employer to me and although I try to side with caggers who are being mistreated, I think you are fair.

 

You have received good advice on the forum [not from me] and I hope you can achieve a resolution to this that is fair to the employee and to you.

 

My best, HB

Illegitimi non carborundum

 

 

 

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Again thanks for all the responses, much appreciated.

 

Papasmurf, in regards to targets I understand where you are coming from, however our targets are set as a framework to successfully do the job, so everyone who works for me needs to be able to achieve them, although our monthly appraisals are used to try to identify areas where people are struggling and any agree training, coaching or different ways of working which may help them. In relation to this particular employee not achieving them, I do not think it is a capability issue, as another member of staff has achieved them and in a shorter period of time, even though in my opinion she does not have as high a "natural" ability compared to him! She has instead done it through sheer hard work. Oh and thanks for the best wishes!

 

SarEl, thanks for breaking your rules! This advice appears to be spot on, and I'm inclined to follow it, aside from the reservation below.

 

Sidewinder, again thank you for providing some great advice. In regards to the internet "misuse", I dont think I can unreservedly prove that it was this was the sole reason for the underperformance. I cant compare factually this guys use against the others who are performing, because as I mentioned I havent monitored or audited their use. My opinion that this was the significant reason for his underperformance was because I had explored training issues in previous appraisals, and none could be identified by either of us - in fact I wracked my brains over it, I just couldnt understand why he wasnt progressing! This was reinforced from the employee admitting to having the non work websites open all day when I suspended him, and a review of his email traffic during the investigation showing a consistent pattern (before and after the "warning") of daily lengthy emails in work time, including football team strategies, statistics, and differing views from various forums on the footballing topic of the day. He originally showed great potential to do the role, but over the past 3 months performance has not progressed as would have been expected, and in some respects deteriorated, triggering the informal warning a month ago that unless matters improved a formal process would need to be followed in the hope of improving matters. In regards to any other factors, before suspending him I asked if there was any personal issues, any issues at home, or any health issues which could be affecting his performance, and he said there were none. I'm not aware of any learning difficulties, in fact I think the guy is highly intelligent (which is why I recruited him!), and my view of his high intelligence is shared by his colleagues.

 

In regards to the guy going travelling, I didnt mention this in the original posting as I wasnt sure if this was relevant to the disciplinary process, and so I have tried to decide what is fair based purely on his conduct. The fact is though, in very recent emails he said that his plan is to hand in his notice and leave at Xmas, and he has got a place to go back to uni next year to do a Masters. I didnt raise this with him at the disciplinary hearing, as I say I didnt think I could, and anyway he could change his plan and stay with us, although I think this is doubtful. My view on him planning to leave is it shouldnt be a problem, go with best wishes, and work really hard to earn as much money as you can in the meantime! (My staff can earn 50% or more of their basic in bonus each month).

 

So thats where I am at. Unsure of whether a final warning will have the desired effect (in one email a month ago the guy joked about me warning he could be face disciplinary if his performance didnt improve), but I cant be sure that an ET would agree a dismissal in these circumstances was "just and equitable", especially as the insubordination is not exactly failing to follow an instruction relating to health and safety or similar "serious" issue, etc. And can I afford the time and distraction of an ET? I've never been taken to one so even the prospect is pretty daunting.

 

I do think its important though that my other staff see what is unacceptable conduct, but at the same time my actions are fair, as in my opinion this will foster higher levels of loyalty and commitment. I always tell them that just because they dont own the company, doesnt mean it isnt just as much "their" company. I also have a new member of staff joining us in 3 weeks, and one just started a month ago, so I have to be aware what either course of action would have on them.

 

As a footnote to this, the employee was subsequently signed off work purely due to the stress of being suspended. I have treated this with sympathy, as I too have been extremely stressed by the whole incident. After running my business for 10 years, I consider myself to be pretty battle hardened to stressful situations much worse than this, but its really affected me. I've had plenty of stress like symptoms including depression, insecurity, inability to sleep and constantly feeling tired and unable to concentrate, to the extent I have needed to take some half day holidays to cope (I havent had a proper holiday all year because we've been struggling and havent felt able to take the time off). However just by posting on this site, and all your responses and advice, has really helped.

 

Thanks everyone

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I think that if this guy really thinks that a final warning isn't that big a problem, then he will solve the problem himself. He'll ignore it within the week and you will have grounds to safely dismiss. Technically, on a final warning, you could sack him for being five minutes late or making the tea wrong. But it does occur to me - if he hasn't "fulfilled his potential" he's probably got less than 12 months service, so you theoretically could dismiss him without any of this because he couldn't claim unfair dismissal anyway. I wouldn't ever recommend it - right is always right, regardless of whether you "have to" or not, and getting it right every time means you are less likely to make a mistake when it matters. But if he has less than 12 months service he cannot claim for unfair dismissal and so you could just terminate the contract. I'd recommend paying the notice though - unless you really are prepared to stick to your guns.

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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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Hi Everyone

 

Just an update on this, decided on issuing a final written warning rather than dismissal.

 

I know this is putting my faith in the employee, and hopefully this faith will be repaid! Fingers crossed it does the trick and the employee will at least give his all between now and Xmas, and then if he wishes to move on to pastures new, he can do so with everyone's best wishes.

 

Thanks for all the advice and help, it was really appreciated.

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Thanks for the update. I think you have made the right decision - hopefully he will prove that you have.

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

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And I hope he appreciates being given another chance. Few employers would have invested the time and effort to do so. On boards like this is is often hard to keep life in perspective, and it serves as a reminder that in fact the majority of employers, like the majority of employees, really want to get it right and have a nice, quiet, peaceful life

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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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