How to get rid of trouble-causing employees

By Alistair November 28, 2023 10:07

A step-by-step guide to saying goodbye, legally, by Carolyne Wahlen from Golf HR.

The majority of employees are great – they get on with their work, they do their best and they’re perfectly pleasant to be around.

We never get calls about those sorts of employees.

Unfortunately, there’s also the other end of the spectrum – employees that, no matter what you do, cause you trouble at every term.

They ignore instructions, they’re rude to their colleagues, they take liberties, they just – quite simply – don’t seem to get it.

Maybe that manifests itself in an act which puts them beyond the pale, or maybe there’s just an overall sense that they need to go.

Either way, you want them gone. Question is: can you let them go, or are you risking writing a blank cheque at an employment tribunal? The answer is that it depends on their length of service.

If they have less than two years’ service…

An employee’s continuous service is from the first moment that they start doing any work for you, including trial shifts, zero hours work and so on. All employees should be on your payroll system, no-one should be paid cash nowadays. Just to make sure, check the date that they started on your payroll system.

If they really are under two years’ service, you can just have a meeting with them, in private, and say that it is not working out, we have to let you go, and we will pay your notice.

I’d strongly recommend that you do NOT make them work their notice, as their attitude and behaviour is unlikely to be good.

After all, you’ve already sacked them, so there are no consequences for continued bad behaviour, or lack of application.

What to say to them?

You’re not legally required to tell them why they are being sacked but the conversation will go much smoother and be over much quicker if you have at least three objective / measurable reasons for why it is not working out.

Vague feedback like, “You’re lazy” (lazy is a word we no longer use in giving feedback), will lead to a “No I’m not”, “Yes you are” and so on.

Much better to say, “I asked you three times on Thursday to clean the beer pipes and they were still not done when you left; you never say good morning to any of your colleagues when you come in; you were 15 minutes late every day this week.”

You do not have to follow a disciplinary process for staff under two years’ service, despite what it says in the ACAS guidelines – you have the right to ignore that.

But if you do, you HAVE to state it in your handbook. Staff under two years have no protection from unfair dismissal and cannot take any legal action against you.

The exception?

If you dismiss them after they have raised a whistleblowing issue to you – then it is automatic unfair dismissal. The same is true if you are dismissing them on the grounds of a protected characteristic (we will go through those next month).

If they’re under two years and have a protected characteristic, you’ll need to document the reasons for the dismissal much more precisely and carefully.

For example, you can dismiss a pregnant employee for poor performance, but you’ll need meetings, training and so on all documented over several weeks to prove it is not due to the pregnancy.

If they have over two years’ service…

You have three options here, all of which take time, patience and money.

1. If they’ve done something wrong, or have poor performance, you can use the disciplinary process – a series of meetings (investigation, disciplinary hearing, appeal) for each stage of the process.

The possible sanctions in this scenario are – in order – first written warning, final written warning or dismissal.

At every stage you need to have evidence of the wrongdoing – this doesn’t need to be criminal court level, but it does need to be clear enough that an independent third party could easily see what had gone wrong.

Want to go straight for dismissal? You can only do this for cases of gross misconduct, and even then, you still have to have all three meetings first.

The issue many find with underperforming employees is that there aren’t enough specifics to do a disciplinary, which is why we sometimes use the next option, restructuring.

2. Restructuring is a non-contentious way to remove members of the team without picking on any given individual.

You put the whole team at risk, show them the new department structure, and give them the details of each job, together with hours of work, salary and other benefits.

(We often remove the enhanced overtime or tied accommodation as part of this process).

Everyone is put at risk and can choose whether to apply for the new jobs with the new terms and conditions. If they don’t apply, they go through the process and are made redundant at the end of the three-week consultation period.

This is a low-risk option as the staff have self-selected themselves for redundancy. Using our process, we have never had any tribunal claims. It is a process that allows the long service, ‘not really performing’ employees to move on without blame on either side.

3. The final option, and one we will go into more detail at a future date, is a settlement agreement.

If the employee is at senior level in the golf club – a general manager or head greenkeeper – we strongly recommend using this option.

Settlement agreements are used after having a without prejudice conversation with the individual, and then putting the offer in writing. You will have to pay notice (always) and offer a tax-free amount to give up their right to sue the club. This is often the quickest, cleanest and easiest way for all concerned to part ways. It usually takes under two weeks for the individual to leave, from conversation to signature.

The key thing is to dismiss any underperforming or difficult employees while they are under two years’ service. You can dismiss after that, but it gets a lot more expensive in time and money.

For further advice on this matter or any other staff or member issue affecting your golf club, please contact Carolyne Wahlen, Golf HR, on cw@golfhr.co.uk or 01491 598 700