Misconduct "probation" period - HR help!

[arielmanto]

Hi all,

I work in a small business (10 people) and one lady has been bad mouthing the company repeatedly for a long time. Pulled up on it by the director, she apologised and for a while, was better. Since January the director has been away, and the behaviour is creeping in again. Telling the younger employees this is "a shit place to work" and that it's "not worth you doing overtime/helping lift boxes/etc" and that they could all "get more money in tesco". The thing is, it's not a bad place to work, they are all paid industry standard, and they get a fair amount of perks. Said employee has been there since she left school 20 years ago, and when pulled up on this says she never wants to leave, she is sorry, her head is a mess. She had something of a breakdown two years ago and was fully supported with time off and a change of job pace (but no salary cut) to help her ease back in. The director has tried various things - company car, extra days holiday for long serving staff etc to improve mood, but bottom line seems to be she is just polluting the atmosphere. We now have two apprentices who are picking up the same "that's not my responsibility" attitude.
I am in the office and have been managing the workshop in the director's absence and the toxic atmosphere is making me so anxious. I am a competent manager but this is not something I can change (it seems).
Director is now back, and we have sat down today. I have reported all this and he wants to put this lady into a three month "probation" period to see if she can turn her shit around.
We are tiny and have no HR dept or training. I think we have made an error in not recording the first time she was pulled up by director (he said she would be out of a job if he heard/saw her pull some of her stunts again and she acknowledged she was way out of line and out of control). If we have another meeting tomorrow can we record it as a first written warning? Or do we have to start with a recorded verbal?
And is there such a thing as a "probation" period 20 years into a job?
I am scared she will get litigious and I do not want to advise the director wrongly.
Any advice greatly appreciated.

Do you have a disciplinary policy? If not, download a template from ACAS and create one. Launch it, publicise, and then follow it. I believe what you're looking to do with this person is put them on a Performance Improvement Plan - where you set specific objectives, review them regularly, and if they are not met you can proceed to the next step in your policy. When creating / revising your policy, give attention to whether you are calling defaming the company misconduct or gross misconduct, as it will affect how you can handle it.

Yeah it's not probation is a PIP.

A PIP can eventually lead to being managed out of the business and can be for behavioural issues as well as technical.

I suppose it's like a probation. But it's not probation.

magic has covered it well tbh, the ACAS draft policy would be the best one to bring in if you don't have on already and agree with magic about thinking carefully about what you would consider gross misconduct.

www.acas.org.uk/index.aspx?articleid=2174

If you have a policy already, start implementing it! Do you have one? If so, what are the stages you have in it?

There is no chance of implementing a 'probation policy' on anyone but a new starter. You need to follow your disciplinary policy closely. That would normally state a time that a warning would be valid for, and the next steps if there was a repeat of the incident during that timeframe. So it might be verbal/written/final/dismissal, but not a quick process with the meetings and investigations involved.

Does anyone else do this person's work? It is not unknown for people under the disciplinary process to go off sick in some cases so please bear that in mind and again, I'd look at the ACAS guidance to have a plan in mind should this crop up at all.

Thank you so much - I will look into that policy framework tomorrow morning and implement ASAP. I can easily imagine the sickness scenario TBH and yes, workload aside, there are others who can do the same job. It's all so unpleasant in such a small workplace, it's miserable. I really appreciate the help with terminology and details

Policies usually have a clause about instant dismissal for gross misconduct which is why you should give some thought to what the company would consider gross misconduct. But have a read up on the ACAS website and guidelines first.

Hope it all gets sorted out OP, a bad atmosphere at work is never nice to deal with.

Sounds like a sensible plan. It can be tough in smaller companies because you never think you should need policies for all this...until you do. ACAS is brilliant for stuff like this. If it gets more complex, you could look at getting some HR advice or consulting an employment solicitor, but hopefully it won't be needed.

If it’s conduct not performance then a pip is not appropriate. You need an informal warning (written minutes, letter, spelling out what the person has done and that they cannot do it again etc), first written warning if behaviour continues (investigation eg statements taken from witnesses, meeting with written minutes, recorded rationale, letter) and final written warning if behaviour continues which would lead to dismissal.

I don’t think this behaviour amounts to gross misconduct.

That’s a rough overview - you should consult acas

If you can afford it I would suggest consulting with a well reputed employment lawyer (be warned that most of them aren’t the brightest and won’t necessarily give sound advice). If not then buy an employment law textbook from a reputable publisher and have your smartest person read the relevant sections (it’s not hard at all, you literally don’t need to be a lawyer to do employment law at this level). Unfortunately her illness can be used as a stick to beat you with especially because the line between mental illness and a bad attitude can be difficult to draw.

Unfortunately her illness can be used as a stick to beat you with especially because the line between mental illness and a bad attitude can be difficult to draw.

The employee must have already formally advised the company that they have a MH problem that is classed by their GP as a long term disability for it to count as such wrt protection under Equality Act. They cannot retrospectively claim to have a disability on a whim. It sounds like the employer has bent over backwards to support this person which can be evidenced if they were misguided enough to try and take them to Tribunal (if they were eventually dismissed).

It would be safest to start this process from now, with fair warning to the employee (verbally) that continued negativity and open criticism of the company will not be tolerated and could lead to more formal steps being taken. Document (not on the staff file but a handwritten "note to self" as an aide memoire) that the conversation took place as the informal first verbal warning. Give the staff member an official escalation route through which to talk about concerns so they can't complain they don't have a way to communicate problems.

If the apprentices have developed the attitude that "it isn't my job" this could be pointing to the need to formalise peoples job descriptions and annual objectives. As a company increases in size it becomes necessary to become more formal than employees having a casual understanding about what each person does.

If it’s conduct not performance then a pip is not appropriate

Totally depends. If it's an in going behavioural issue, yes it can appropriate. You could go down the route of verbal warning. But a pip wild be framed as 'you are clearly unhappy (dont accept it when she says she is), its impacting other staff, let's work together to see how we can improve this'. Which if she has got ongoing mental health issues is a more gentle supportive way.

A pip also gives the company chance to record everything. Regular touch points with her, where you can bring up observed behaviour and tell her clearly that it's not ok. The problem is, as you said, nothing has been recorded yet. A verbal warning for moaning about the job seems a bit heavy handed.

I really think given her length of service and if she has made you aware of an on going mental health issue you would be best served getting outside advice.

.... let's work together to see how we can improve this'. Which if she has got ongoing mental health issues is a more gentle supportive way.

Really? I think the employer has given plenty of the gentle treatment by the sounds of it. Using MH as an explanation or excuse for this behaviour is misguided. Plenty of people have MH problems and don't feel the need to openly criticising their employer to other members of staff.. What if a customer was onsite and heard them say "this place is crap"? It could lose the company business and harm their reputation.

The company needs to regain control. Many employers nowadays provide guidelines on behaviours, that form part of the contractual buy-in for working at the company. It would be worth including behavioural guidelines within the company policy.