Taking the Headache out of Managing People – Part 2
DENTAL BULLETIN, ISSUE 21
In our last dental bulletin we gave some practical tips on how to manage persistent sickness absences and minor misdemeanours. However, managing personalities, as opposed to conduct, is a much harder skill and employers need to tread carefully or risk alienating staff or even having a claim issued against you.
In this second part of managing people, we look at how to deal with personality clashes within your practice and rectifying bad attitudes. We also explain what ‘pre-termination negotiations’ are and how they can be used to resolve issues quickly.
This can arise when two employees fall out with each other or employees have differing opinions which they are expressing in the work place. If you are a small business these issues can escalate quickly and if not nipped in the bud will lead to animosity and could affect how the workforce views you as a manager.
When dealing with the first scenario you should try mediating with the employees in question. You can either act as the mediator yourself or there are professional workplace mediators that can assist with such situations. Which option you choose will depend on how far the disagreement has escalated and how comfortable you feel being involved; you may need to point out to the employees if they are in the wrong, which could be perceived as you taking sides when that is not the case.
Hopefully, this will resolve any issues early on and prevent them turning into major conflicts. After any meeting, monitor the situation to ensure peace remains. If you have any inkling that things are not resolved you should call each employee into a meeting separately to find out what is happening and then consider how best to proceed. It is a fact of life that not everyone is going to get along; if differences cannot be resolved but employees are willing to be civil to each other, then you do not need to worry further.
In the second scenario you need to be careful in case the employees are expressing for example religious beliefs, as they may be protected from discrimination. This is not to say you are prevented from taking action to ensure a happy workplace. However, given the array of possible scenarios, it would be difficult for us to offer any generic advice. As such if you are faced with such a situation, we would recommend seeking specific legal advice. Otherwise, mediation is probably the best course of action, as well as seeking agreement from employees that they will avoid discussing such matters in the workplace.
Bad Attitude or Difficult Personalities
You may be faced with a situation where an employee simply does not like being given instructions or they have a difficult personality, which rubs others up the wrong way.
In both situations, you should hold an informal meeting with the employee.
Practical rules during an informal meeting with your employee:
1. Be sensitive as the reality is you are criticising them on a personal level. Highlight to the employee what effect their actions are having, rather than highlighting the personality trait that is an issue.
2. Give examples of the issues so the employee can understand. If you use general terms such as ‘I don’t like your attitude’ the employee will not know what it is they are doing wrong.
3. Give the employee a chance to respond, which may mean having a rant at you, but don’t let this go on too long.
4. It may be that you are the first employer to tackle this issue with the employee and they are likely to feel hurt.
5. Ask the employee for small changes to help improve the workplace environment and monitor the situation thereafter.
If the bad attitude means the employee refuses to undertake tasks, rather than undertaking them but with a scowl, then this would be failing to follow a reasonable management instruction and should be dealt with as a misconduct issue.
Can You Dismiss?
If the employee has less than two years’ service it may be worth cutting your losses early on. Having in place a probationary period in the employment contract can help you see if a new employee is a good fit for your business. In a small practice it is important not only to have good workers but staff that get on and enjoy their working environment.
It will be harder to dismiss someone with over two years’ service in these circumstances unless you can show that the personality clash or attitude amounts to ‘some other substantial reason’ for dismissal and to do this you will need to show that the conflict is causing a substantial disruption to the business. A difficult personality in itself will not be sufficient; the difficulties will need to be causing issues with patients and other employees.
As with any dismissal, you will need to follow a fair process and you will need to consider if you can do anything to avoid terminating the contract.
In larger organisations, redeployment can be an option. But in a small business this will just not be possible. As already mentioned, mediation is a tool that can be used to try to resolve issues. Alternatively, consider if you can change working patterns so employees avoid each other.
Prior to July 2013 if you wanted settlement negotiations to be on a without prejudice basis, so they could not later be used against you in court, they had to arise out of a genuine attempt to settle a dispute. This meant that there had to be some dispute in place, such as misconduct or capability, before you could approach an employee with a settlement agreement.
However, most employers wish to explore the option of an exit payment before a dispute arises, so as to avoid management time on a dismissal process. In response to this problem the Government brought in the concept of pre-termination negotiations.
‘Pre-termination negotiations’ means any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee.
Either the employee or employer can start pre-termination negotiations. However, it is only in ordinary unfair dismissal cases that a party will be prevented from relying on pre-termination negotiations. As long as there are no issues of discrimination, whistleblowing, and pregnancy related issues you are free to open up discussions about a possible settlement.
Also there cannot be any improper behaviour such as putting pressure on the employee to settle, giving them an ultimatum to sign or be dismissed (although you are not prevented from starting dismissal procedures should the employee reject any offer) or harassment/bullying.
ACAS has a very good guide to help you with this process and we would recommend you follow this code in order to ensure any pre-termination negotiations remain just that.
How much you decide to offer as a settlement payment will depend on the situation. The larger the offer the more incentive there is for the employee to accept it. Any offer will need to be over and above any minimum payments they would get if dismissed in the ordinary course of events, otherwise an employee is extremely unlikely to accept it.
If you need a settlement agreement drafting or advice on what to offer and how to approach the employee, please contact Laura Pearce on 0207 388 1658 or at firstname.lastname@example.org. Preparing a settlement agreement and making a proper approach to the employee could be far less costly than having to manage the situation or undertake dismissal processes.
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Laura Pearce, Senior Solicitor