Firing an employee

[Casino68]

We are a small family business who employed someone 6 years ago. He has always been less than ideal, unable to follow simple instructions, very slow and at times obstructive. We work in an industry which is notoriously bad for finding and retaining labour. 13 months ago we hired a new employee who is brilliant which highlights just how bad the old employee is. Since the new employee started the old employee has been in a huff, really no other way to describe it. He has become really lazy and deliberately goes out his way to make our lives difficult.
Our brilliant employee has been on a weeks holiday and in that week the original employees conduct has been unbearable. "Accidently" damaging equipment, not following instructions and only doing part of a task that they have been doing adequately for the past 6 years, pointing this out to them has lead to them sulking and not talking to us. It is as if he truly believes that we are here for his convenience rather than vice versa and he makes it obvious that he really would rather be anywhere else and thinks by turning up he is doing us a massive favour.
I really feel that matters have come to a head. I know it sounds awful but I don't want to make him redundant as I would really resent paying him redundancy. Also making them redundant would make it difficult to employ someone to replace them. I am considering giving him a verbal warning (confirmed in writing) and then following the necessary step to terminate his employment if things don't improve.

Does anyone know if accepting his less than stellar performance for the last 6 years means we've set some sort of legal precedent for having to accept it in the future?

Would breaking items not be gross misconduct?

Don't you have to give them an improvement plan before you can sack them?

Always claims it was an accident and we don't see it happen as sometimes he works unsupervised. He is basically a labourer, last week he broke 2 brooms, put a shovel through a water pipe and incorrectly stored equipment that lead to it requiring repair. Individually you could let it slide but it is happening more frequently and means that we are continually having to replace or repair things. On top of this we had to put up with his bad attitude and only doing part of jobs.
As I mentioned previously we are a small buisness, just DH, me and 2 employees, we don't have a HR or legal department and have a basic grasp on employment based on being employees ourselves in the past.

Surely giving a verbal warning would be a way of telling them to improve. We are talking about very simple tasks, sweeping, shovelling. How do you tell someone to improve the way they wield a broom? Obviously, if he takes onboard the verbal warning and improves, we would not need to take any further steps but I can imagine he will not take it well and his behaviour will become worse.

You need to have more than a basic grasp on employment law if you are employing people, however small the number.

I would in this instance pay for legal advice to see what can be done regarding this particular situation.

If you’re employing people then it’s your responsibility to have more than a “basic” grasp of employment.

Read the ACAS guidelines on dismissals. You can also ring them for advice. https://www.acas.org.uk/dismissals

If you fire someone without following the correct process you risk them taking you to a tribunal and you could lose.
As for redundancy, you make a role redundant, not a person. If you plan to fill the post afterwards then it's not a redundancy situation.
As an employer you have to understand the difference.
Pay for proper legal advice to avoid potentially greater costs if you go about this the wrong way.

Have you been doing regular supervisions with him? This would involve telling him what he’s doing well and agreeing targets to develop his work. Keeping written records of supervisions which will over time highlight that he has consistently failed to meet his targets

Ring ACAS for advice x

Thanks for all the advice, I will contact ACAS in the morning.

You need to put him on a performance improvement plan and show he has been given proper training etc or you could end up in a tribunal!

As above. If you've an employee performing under par then you need to follow some basic procedural steps so they understand what's wrong and have the opportunity to improve. AIUI, if you follow the process properly then, while nothing is failure proof, you should be OK.

The issue I've had when a manager is that the person pulls their socks up for a bit followed by backsliding into the unacceptable. Some people were experts at this doing just enough for warnings etc to expire before the same habituated bad behaviours came back.

It depends whether it’s a “can’t do” (doesn’t have the ability) or “won’t do” (refuses to work properly) as to what you do. One is capability, one is conduct - both potentially fair reasons to dismiss if you follow the right procedure.

Verbal warnings are basically informal these days so that won’t help you much.

It sounds more like misconduct to me (negligence in causing damage, and refusal to correctly perform work tasks) but there’s nothing that screams gross misconduct/instant dismissal so in all likelihood you’d need to dismiss only if he continues to misbehave after a series of formal warnings. If there are also performance issues then you could run the capability process concurrently but it’s usually trickier to tot up warnings across both procedures - hed likely need to have a written warning, then final written, then a third act (for conduct or capability, not both) to justify dismissal…

You need legal advice though!

You

Whoops! I was meaning to say...check your business insurance as it will probably include a free legal advice helpline. We used ours when we had to dismiss someone (we too are a similar sized family business) and they were very helpful and clear about what you must & must not do.

Do you use an HR service? They will help. You have to do this in stages - performance review, written warning, dismissal with notice. Unless it’s gross misconduct when you can sack immediately.

We've decided to bite the bullet and follow the redundancy route, but even that isn't simple. Luckily we have very comprehensive business insurance which covers our legal expenses so everything we are doing is above board.

Are you a member of the FSB?
This is where their membership really pays for itself

Get a HR professional to advise you on the proper process to get rid of this person.
If you dint get it right it could cost you a lot more in the meantime
And don’t bother with FSB their advice is pretty generic, you need someone to properly manage the whole thing

Does the new employee do the same or similar role? And could the at risk employee do their role potentially?

This is a clear cut sham redundancy. Might be worth approaching this as a without prejudice conversation instead and throw a bit more money on top of what would be a redundancy payout to make it attractive.

Worth noting with legal cover if you act unlawfully it voids your cover.

The new employee has been here for 13 months so not technically that new. Whilst there is a small amount of crossover in their jobs, the newer employee is better qualified and has a higher level of responsibility and is capable of running the business if we are not there. We are not replacing the old employee with a new employee.
We are going to follow all the necessary steps to ensure that we are covered.

It may not feel right or feel like he deserves the redundancy pay, but in the long run it will be cheapest and best way forward. Follow the advice religiously as the slightest error will end up in tribunal and the tribunal ALWAYS tries to find for the employee as they are the alleged smaller, less earning party. Even when egregious the tribunal will try to find some way to give compensation to the employee - at least according to our tribunal's off the record advice.

But his role isn’t redundant, so following any “necessary steps” isn’t going to help. He’d also even have an argument that the newer employee should be bumped out to protect his employment… or that the two roles should be pooled together as they are similar… it’s not as easy as you might think.

You already have two (fair) reasons to sack him - so why go through a sham redundancy process and put yourself further at risk?

Employment Tribunals are really wise to this and will know exactly what you were doing.

As I said, you REALLY need legal advice, and probably to engage a HR consultant to help you deal with this one issue. Otherwise it could be a very expensive mistake!

And as an aside - legal expenses cover may not help you. Most policies I’ve seen don’t cover you unless you take advice on each step first before taking ANY action, and they often don’t cover breach of contract claims at all.

but maybe you’ll get lucky and he won’t bring a claim!

IME emloyees like this are more likely to cause trouble if their employment ends involuntary and they feel wronged.

The problem with tribunals isn't necessarily the award - although ETs can award up to 25% on top if an employer hasn't followed ACAS best practice. The main problem is its a total ballache, time consuming, stressful, and employers usually end up settling for more than what they would have needed to pay if they followed the right process - in this case, the PIP route.

Do you have a written business case for the redundancy? Documented alternatives?Justification that it is indeed a single role redundancy? Written reasoning why a bumped redundancy is not appropriate - employers don't have to bump redundancy but they need to have considered it as an alternative.

Do you have answers prepared for any alternatives the employee may come up with e.g reducing their hours, taking more on, temporary lay off etc?