How should I discipline a disengaged employee for underperformance?

Posted in : Seamus Says - Employment Law Discussion on 4 May 2018
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered:

Q: We have a disengaged employee. It is time to go down a disciplinary/performance route but we suspect he will go off sick prior to interview. How do we handle this?

Seamus: The basic breakdown of this scenario is that we have an employee who’s unmotivated and the employer probably feels that they’ve taken all of the steps they can take in terms of trying to get the employee back on track. I would have thought that the best up here is maybe to take some time if you’re the HR manager, if you’re advising the line manager.

Doing a review of the employee, how was the employee whenever they joined the business? What did they do? What did they do under pressure? How were they motivated? Something has clearly gone wrong that the motivation has gone away. That may be to do with the job itself. It may be to do with something in their personal life.

So, before we get down the process of getting into that management process, whether it’s a PIP or some other tool that’s used, once you hit that, your options are limited in terms of their target set and if they don’t meet the targets, there’s a problem, but you have an employee here who potentially at one point, whenever they started and maybe for a period after that, they were an impressive employee. They were hitting all of the right signs in terms of their job.

What you want to find is what’s going on with the employee, what’s the problem here in terms of it. It’s probably the best thing to do is to sit down with the employee and to try to find out what is going on. In terms of alternative suggestions for that, it may be that the employee is going to tell you that they’re bored in the job and the job is easy, they’re not getting any gratification out of the job. That might be about looking for is there a project that we give the employee, if there are different aspects of the job that the employee could do.

The employee could be a very capable employee and they could be used somewhere else in the business. You may be looking at some sort of mentoring to go on in relation to the employee, maybe some sort of buddy scheme to keep in contact with the employee to find out and possibly ask that buddy what exactly has gone on with this employee, what information they can provide to you, or the type of coaching scheme was the other aspect, really trying to get the employee back on track before you go down this road.

Scott: The reason for that is that it’s going to take forever. If you’ve got to demotivate, go off sick, how can you prove that they’re going off sick as a reaction to this meeting or because they’re depressed or because they’re stressed out or because whatever? It takes a long time to go on to OH and move on to capability. Even if you’ve moved down this performance route or disciplinary route, whatever you want to call it and go back to one of the earlier questions, it’s a slow, long process.

Seamus: It’s a grind because what you’re going to have to do is you’re going to have to go through this process, you’re going to give every opportunity for improvement. You’re going to have give assistance in terms of the employee getting back to a standard that is satisfactory for the business. It’s a slow process. If they go out on sick, how long are they going to go out sick for? It could be costly in terms of bringing somebody in to cover for the job in the meantime. You can be doing occupational health roads to get medical evidence in terms of what the issues are with the employee and how you can assist the employee and return them back.

Scott: And of course, there could be an underlying issue there. If you have an employee assistance programme, they can contact somebody about and you encourage them and something else, it could well be that there’s something in the house. It may not be that they’re disengaged because of the work. It could simply be that they can’t cope with what’s happening in their home life and maybe that’s where the EAP (employee assistance programme) comes in or there’s some kind of cognitive behavioural therapy, CBT or something that would unlock that. When you go in there, it’s unknown, but your key point is you need to find open discussion to say, ‘You used to be really good. What’s going on?’

Seamus: What has happened? What’s the problem here?

Scott: Maybe it should have been done earlier. If there’s a criticism here of the employer, it’s that you wait and it goes back again to one of the earlier questions, you wait until things become a problem rather than a minor issue and had that been picked up that their performance wasn’t quite as good as opposed to it’s now rubbish, then if you picked it up earlier, you might have been able to turn it around and you would be more open to discussion before, say the depression set in or the big home life problems happened or the real boredom of the job.

Seamus: Again, it’s about setting the standards and when the standards slip if they slip too far that’s the employee’s expectation, that’s okay. That’s fine to do it that way. It is about that. Certainly, from a tribunal point of view, if you did end up at dismissal and there was a claim taken and you ended up in tribunal, the tribunal will want to be hearing that you have, I think, for a lot of employers, they can be fearful of having those conversations with employees because they fear that they’re going to say something wrong or they’re going to something is going to land them in the tribunal.

Provided you’re taking that approach and it’s a measured approach with the employee and you’re really taking the best steps that you can in order to assist this employee. If you’re phrasing it that way and you’re looking it from that perspective, it really will assist . . . if you go down the road and you’ve done everything that you possibly can, that maybe is this impression of this query is just up the point of complete frustration that they have felt that they’ve tried everything.

Hopefully, those couple of suggestions might be of assistance, but if they’re not, they probably are at the point of sitting down with the employee and having a really frank conversation and saying to them, ‘Listen, this is where we at, this is our performance improvement programme. This is the process that we will work through in terms of this. This is the likely outcomes of it.’ As a last-ditch attempt, really getting their employee to focus on that aspect and saying, ‘If the socks aren’t pulled up sufficiently enough and the standards don’t return, this is where you’re going to be at.’

Scott: That is one, two, three procedures, etc., all that kind of stuff again. Yesterday, funny enough, we were hosting a conference at our HR Symposium in Dublin. Some of the listeners may well know Dr Phil McCrea. He’s an occupational health doctor. Probably heard his name around. He’s now based in Birmingham, running BHSF in Birmingham.

But he was giving a presentation and reckons within five years, most employers will have presenteeism policies because this person is present but they’re not actually working. A lot of employers are scared to have those conversations about health before the person goes off sick. By the time they go off sick, it’s too late. They’re not coming back. If they’ve been off for six weeks, there’s a very good chance they’ll never be back. If they’ve been off for a year, the statistics show you’ve got about a 5% chance that the employee is going to come back and of course, you’ve got that gradient all the way down from when they first go off.

If you can get this person before they go off sick on this question which was written down here earlier, you stand a chance of turning this thing around, avoiding all the problems with the sickness, getting all the cover, doing all those issues that employers have difficulty with. It’s just that we’ve been brave enough to have a conversation.

Seamus: That’s it. I suppose with those conversations, you don’t necessarily have to formalise them and have three people in the room and a notetaker, it can be a one to one if that’s a way of doing it. As was key to that is maybe having some sort of note, whether it’s taken at the time or when you go back to your desk, put your note together at that point to record accurately what was discussed so there is something there in case there would be some allegation made, at least it’s just something written down you can refer back and say, ‘This is the accurate record of what we discussed.’


This article is correct at 04/05/2018

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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