Poor Performance and Misconduct – Navigating the Minefield

“No man is an island” – this phrase is particularly pertinent in the workplace, given that many of us depend on the skills, experience, expertise or manpower of employees in order to succeed. Whilst employing staff is positive and beneficial for the most part, it also involves issues and potential liabilities, which can be difficult to manage especially for smaller employers with limited resources.

This article looks at the two common employment scenarios and gives guidance on how best to manage them successfully to avoid poor performance and misconduct .

Scenario 1: Performance Issues

My secretary seems to be struggling to get her work done. She has been employed for 5 years but only became my secretary 6 months ago. She rarely completes tasks on time and the letters she produces are often inaccurate and contain typos, which puts additional pressure on me and others to ensure everything is checked carefully. She is often late to meetings, disorganised and never seems to be on top of things, but she is fun and friendly and gets on well with everyone. We haven’t said anything to her about her work as we don’t want to hurt her feelings, and I had hoped things would start to improve naturally as she settled into the role. However, last week she lost a patient file, and although it was subsequently found under a pile of miscellaneous paperwork on her desk, it has become clear that something needs to be done to avoid more serious issues arising in future – what should we do?

Under-performers are an unfortunately common issue for many employers.  Whilst it is often tempting (especially when you have a full work-load) to avoid having difficult conversations with under-performers, this is not advisable.  Primarily because there is little prospect of improvement without some action being taken, in the meantime the situation could get worse and, if a serious issue were to arise, a lack of previous action might constrain the steps you could take.

The starting point for this kind of situation is to arrange a meeting with the employee to discuss the situation.  The meeting should be informal and designed to: provide constructive feedback; establish whether there are any underlying causes for the poor performance; and set clear and achievable goals/ standards for the employee to work towards.  If there are underlying causes for the performance issues these will need to be considered carefully and sensitively meaning specific support might be needed.

It may be that this meeting will allow you to identify simple steps to address the situation.  For example, it may be that the training the employee received at the commencement of employment was insufficient and this can be addressed by additional training.

A further review meeting should be organised for a reasonable future date, perhaps a month later, at which you should discuss and review the employee’s performance.  At that stage it should be apparent whether improvements have been / are being made and the concern is resolved, or that further formal action is necessary.

If the performance has not improved or not improved sufficiently, a formal performance management process should be initiated.  This would involve a series of formal, minuted meetings and a documented plan being drawn up setting out specific measureable targets and objectives with deadlines.  The length of the process will be determined by the number and nature of issues but should afford the employee a reasonable opportunity to improve.

It is important to provide advanced notice of each formal meeting and allow the employee to be accompanied by a Trade Union representative or work colleague.  The employee must understand, from the outset, the purpose of the meetings and that failing to meet the required standards could result in warnings/sanctions being issued and ultimately dismissal on the grounds of capability.

Capability is one of the five potentially fair statutory reasons for dismissal but it is crucial that employers follow a fair performance management process before dismissing an employee on the grounds of capability, in order to demonstrate that the dismissal is procedurally as well as substantively fair and thereby reduce the risk of Employment Tribunal claims and allow any claims to be defended robustly.

It does not seem that dismissal is the desired or likely outcome in this scenario but managing the performance issues proactively, sensitively and in line with the process suggested above should enable the required improvements to be made and risks to be managed whilst maintaining good relationships.

Scenario 2: Conduct Issues

We have had two incidents in the last month where patients have complained that they did not receive medication upon discharge but were invoiced for it. Our records for both occasions show that the medication was dispensed and sent home with the patient, so we are concerned that the medication has gone missing. The same nurse discharged both patients and the medication in question was Tramadol. We suspect she has taken it because something similar happened in a different site a few years ago, although unlike the nurse in that case, this nurse has 9 years’ service and a clean disciplinary record. We are planning to suspend the nurse first thing Monday morning and then invite her to a disciplinary meeting on Tuesday, as this needs to be dealt with urgently – is that an appropriate way forward?

It is often tempting in situations such as this to rush ahead and deal with things as a matter of urgency, but doing so could jeopardise the process and lead to liabilities, such as claims for unfair dismissal, constructive dismissal and/or breach of contract. Taking time to ensure that proper procedures are followed is important in this context.

Conduct (or, more appropriately, misconduct) is another potentially fair statutory reason to dismiss but a fair process including an appropriate level of investigation must be undertaken first – without this employers are at risk of Employment Tribunal claims and less able to defend such claims robustly.

Even when you are dealing with serious conduct concerns, suspension must never be an automatic, knee-jerk reaction. Each case should be assessed by reference to the specific circumstances.

In this scenario it appears the employer has formed an initial judgment based on a previous unconnected incident involving a different employee, which is not advisable.  Rather, the employer should consider and weigh up:- the nurses’ clean record and lengthy service; the seriousness of the issue; the impact a suspension could have on the employee (in terms of both her career and her well-being); the risks if she remains at work for the time being and any ways those risks could be mitigated.  On assessing the situation the employer may determine that it is sufficient to restrict the nurses’ duties temporarily to prevent her handling/administering medication or have her to work in a different role meaning that suspension is not necessary.

Suspension should always be a last resort because it has been established by the courts that suspension is not a neutral act, and doing so without reasonable grounds and consideration of alternative options could amount to a breach of contract.

It is also essential that an investigation is carried out before the employee is invited to attend a disciplinary hearing.  The purpose of an investigation is to gather all relevant material, so in this case it would be necessary to consider:- the process of dispensing a prescription; whether any other members of staff were involved in the processes; what the circumstances were on the two occasions in question; what the nursing notes / discharge paperwork shows and who completed these documents.  It would also be necessary to speak to the nurse under suspicion, all other staff involved and any witnesses to the events.  The investigation should be carried out by a senior staff member who is unconnected to the issue.

A recent case has confirmed that it will be rare for an investigation to be viewed as too thorough. However, whether an investigation is sufficient will always be scrutinised by the Employment Tribunal in an unfair dismissal claim.

A decision on whether there is a disciplinary case to answer by the nurse should only be taken once a thorough investigation has been carried out.  This decision should ideally be made by another senior manager who would then chair the disciplinary process.   If there is to be a disciplinary hearing the employee should be invited with reasonable advance notice and allowed to be accompanied by a Trade Union representative or a work colleague.  It is essential that in advance of the hearing the employee is informed of the specific allegations and given a copy of the investigation report.

The disciplinary decision should be taken after the hearing and confirmed in writing. The employee should be given the right to appeal the decision and told how to do so.  If there is an appeal then ideally it should be dealt with by another manager who has not been involved in the case.  If the allegations are upheld, it is likely that a referral to the NMC would be necessary.