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Can you dismiss a difficult employee?

Tuesday, May 30th, 2017

The short answer is yes BUT you must be careful! You do not want a constructive dismissal case on your hands but equally, an employee that is simply working against the desires of the company just cannot be ignored.

If have you ever had a difficult employee – one that is just not prepared to change or engage or buy into a new idea or initiative – then read on………….

  1. Opposition to a strategy is not generally seen as a valid reason for dismissing an employee. However, the conduct of the employee whilst opposing something the company wishes to implement could well be – each case is different so you will need to take advice every step of the way but you do not have to put up with a ‘won’t do’ person as long as you have explored why and followed a reasonable process. 
  2. Be careful about why you are dismissing the person – a lengthy dismissal letter can look like you are trying too hard to get rid of an awkward but not unlawful employee. It is always best to keep focused on the main reasons and not throw in other problems that might make it look like you are ‘padding out’ your complaints against the employee – again if in doubt take advice.
  3. Don’t miss the wood for the trees – if during an investigation or a disciplinary process the employee identifies discrepancies between different witnesses, or gives evidence that puts other evidence into doubt, do not ignore this – investigate it, even at the appeal stage. As we have often said the most crucial part of any disciplinary is the investigation but the appeal is not there to simply ‘rubber stamp’ the decision – it is there to make sure the right decision was made. Crucial questions to have in mind through the entire process are – is there “a clear picture” emerging showing “deliberate disengagement” and a “mutinous attitude”? Or are we dealing with ‘opinions’ and valid objections that have not been answered?
  4. In tribunal it is important that a fair disciplinary appeal process can be evidenced. It can overcome any unfairness in the dismissal procedure and put right a wrong. As said above, this is not simply a ‘rubber stamping’ part of the process.

In brief, if you focus on the overall picture and the facts of the case, you should remain on the right side of the law. There will sometimes be cases in which taking that approach results in a decision not to dismiss – you should be open to that option too; deciding on dismissal when it’s not fair could be very costly.

So – it can be done but you will undoubtedly need help before acting – ring us if you are in doubt.