Conduct unbecoming

Dealing with difficult employees can take time and proper procedures need to be followed. But you ignore the problem at your peril, retail expert Adam Bernstein warns

However careful you are to employ the best staff, one or more of them may prove difficult to manage. This could mean anything from a poor attitude to brazen acts of misconduct.

Dealing with this can tie up management resources, but ignoring it is not an option as a business could lose a valued member of staff because they could no longer tolerate a troublesome colleague.


Lindsay Connolly, an associate in employment law at Eversheds LLP, says that if you identify an employee as difficult, you will need to consider how serious their behaviour is.

“Refer to your disciplinary policy. This will usually provide examples of what behaviour amounts to misconduct and what constitutes gross misconduct.”

Cases of gross misconduct are easier to identify and such behaviour is usually so serious that, if proven, it warrants immediate dismissal without notice or pay in lieu of notice.

Dealing with misconduct typically involves a staged warning process – a verbal warning, then a first written warning, followed by a final written warning and ultimately dismissal.

In these circumstances, Ms Connolly says dismissal would be with notice or payment in lieu of notice and adds: “If your policy does not provide for a staged warning process, follow one anyway – it’s the expectation should you find yourself before a tribunal.”

Whenever there is any allegation of misconduct or gross misconduct, a fair and balanced investigation should be carried out.

“This may involve taking statements, reviewing CCTV footage or an employee’s training file.” Ms Connolly also advises employers to hold an investigation meeting with the employee to get their response. And for this, they do not have a right to be accompanied.

If the investigation merits a disciplinary hearing, it may be necessary to suspend the employee on full pay.

Disciplinary hearing

A disciplinary hearing should be conducted by an independent manager – one not involved in the disciplinary process.

For smaller businesses, that will not always be possible, which is why it is particularly important to ensure that no decision is made until the conclusion of the disciplinary hearing.

Ms Connolly also advises that firms should ensure the employee is sent a letter inviting them to the hearing. This should detail the allegation, confirm that they have the right to be accompanied, and what the potential outcome may be.

Evidence collated during the investigation should be sent to the employee with a copy of the invitation letter and they should be given a minimum of 24 hours’ notice of the hearing.

She adds: “If possible, have someone accompany you at the disciplinary hearing to take minutes.”

The disciplinary hearing should take the employee through the evidence and give them the opportunity to respond. Once the employee has responded, the disciplinary hearing should be adjourned to allow a review of the evidence and make its decision.

Says Ms Connolly: “You must always confirm your decision in writing and provide the employee with the opportunity to appeal. In cases where a warning has been issued, confirm the date the warning will expire.”