When an employer hires a new person, it is a given expectation that the employee should perform to the best of their ability throughout the course of their employment. It is the responsibility of the employer to effectively manage how staff behave in the workplace – clearly setting out expectations and what is and isn’t permissible.
When the performance of an employee drops, the employer must apply best practices to manage the employee’s conduct – therefore offering them the chance to improve. However, if the employee makes little effort or insufficient steps are taken to change their conduct, employers may find themselves in a situation where they must take further action to deal with the employee’s conduct.
This article looks at how employers can apply best practices when managing such conduct issues. Read on to learn more about the importance of good employee conduct, how to monitor and assess this conduct, and the best ways to drive lasting improvements.
What is the importance of good conduct in a business?
Exhibiting good conduct means representing the values of your business. Employees with good conduct will act in a professional and responsible manner at all times, demonstrating a commitment to and investment in their work.
Employees should have a clear understanding of:
- The expected standard of behavior.
- Any behavior that is considered unacceptable and specifically, gross misconduct.
- The specific rules apply to their role.
A code of conduct is a set standard of rules, which provides an outline of expected behavior. This might offer guidance on rules and expectations such as good timekeeping, dress restrictions, confidentiality, and the correct use of company property.
When an employer deems that an employee is not performing to the required standard, the first thing to consider is whether this has occurred because the employee can’t do the work, or whether it is because they won’t do the work. This is an important distinction, as it requires a different approach on the part of the employer, depending on the answer.
If the employee is performing below standard because they refuse to meet the required standards, then the underlying issue is technically misconduct. In this case, the employer should follow their disciplinary procedure to apply best practices.
If it comes to light that the employer can’t do the work, then the issue is technically poor performance or capability. In this situation, the employer should follow their poor performance procedure to apply best practices to the situation.
It’s important to note that a situation that might initially seem to be a misconduct case may, in fact, turn out to be a performance issue when carefully examined. An example of this might be if an employee is facing allegations of gross misconduct for rude behaviour, but it later turns out that the reason for their behaviour was because they were forced to handle more work than they had been trained to do. Another example is if their attendance or performance has been affected by a personal issue.
Potential reasons for conduct issues
Examples of potential conduct issues might include:
- Rudeness, dishonesty, or a general bad attitude.
- Lateness/tardiness.
- Theft.
- Unauthorized absence.
- Misuse of company property.
- Inappropriate dress or appearance.
- Harassment and bullying.
As there are many reasons why an employee might not be performing to their optimum potential, it is essential to establish the potential reasons for underperformance prior to a formal disciplinary hearing by carrying out an investigation. The reasons for under-performance might include physical or mental illness, such as stress, disability, or personal problems, and it is vital that the employer considers if these issues are a mitigating factor (in which case the employee should be offered support).
Investigating a potential conduct issue
If an employer begins to notice a potential conduct issue, the first step is to investigate the issue. If the issue is caught early, it might be possible to put an action plan into place to improve the employee’s performance.
When an employee is facing an allegation of misconduct, the Acas Code of Practice states that, as a matter of best practice, the employer should conduct a full investigation to establish the facts of the case before proceeding to a disciplinary hearing. During this time, it may be necessary to suspend the employee while these investigations are carried out, however, this should only be done after careful consideration and not as a knee-jerk reaction.
An impartial investigating officer should be appointed to carry out the investigation. The process will include meeting with the employee, taking witness statements, obtaining any relevant documents, and preparing an investigation report. This will also strengthen the defence of any employer who may, later down the line, be facing accusations of unfair dismissal, as they will have evidence of a full investigation being carried out to substantiate their decision to dismiss fairly.
Once the relevant evidence has been obtained, the employer needs to decide whether to either hold a formal disciplinary meeting with the employee, deal with the matter in another way or take up action at all.
Best practice when approaching a formal disciplinary
Every employer must have a disciplinary procedure and it should incorporate the following:
- Encouraging informal conversations between the employee and their manager if the problem is minor.
- If needed, a more formal disciplinary meeting should be arranged, where the employee has the chance to explain their position and discuss their concerns. The employee has the right to be accompanied at disciplinary meetings.
- Ahead of each meeting, the employee should be given written notice inviting them to the meeting, providing them with plenty of warning and all the details about the concerns.
- A series of written warnings should follow successive meetings, explaining the decision taken and identifying dates for improvement. These will usually start with a first written warning, followed by a final written warning, and ultimately dismissal.
- At all stages, the employee should have the right to appeal against the disciplinary decision taken, whether it is a warning or a dismissal.
Discrimination considerations when managing conduct issues
It’s important to consider the risks of discrimination at each stage of the disciplinary process. If an employee’s performance is considered to be sub-standard, then the same benchmarks need to be applied to all employees, regardless of gender, race, or sexual orientation, in order to remove any risk of indirect indiscrimination.
Furthermore, if an employee has a disability that has relevance to the misconduct allegation, then the employer has a duty to consider and make reasonable adjustments to take that into account.
When an employee is underperforming, it is important that the employer follows best practices for managing their conduct issues, whilst taking care to support the employee as much as possible.
In many cases, it may become apparent that the employee can’t do the work, rather than that they won’t do the work. In these situations, the employer will need to make reasonable adjustments and work with the employee to help improve their performance.
If the employee won’t do the work, then the employer should follow the steps laid out in this article to ensure best practice at each stage, from initial conversations to a potential dismissal. In doing so, the employer is minimizing the risk of facing a claim of unfair dismissal – protecting their business and other employees from any unpleasant repercussions.
Author Bio
Loch Associates Group is an expert in developing solutions to help organizations manage and look after their people. With a team of HR Consultants and employment solicitors in Kent, London and Sussex, they provide a unique combination of employment law, HR, wellbeing, and mediation expertise.
If you have concerns about the workplace behaviour of a member of staff, or you need to manage a grievance, Loch Associates Group is here to advise you on applying best practices in a commercial but practical way. They’re able to advise how to handle difficult conversations, hold disciplinary meetings, and carry out investigations for you.