Thu 04 Jul 2019

Proactivity is often the answer when dealing with difficult employees

Hoping matters will sort themselves out is rarely the answer….

The case of Gibson v London Borough of Hounslow and Crane Park School was clearly a challenging set of circumstances for the employer concerned.  The claimant was employed on a 3 year fixed term contract (so had accrued the service necessary for protection from unfair dismissal) as a special needs school teacher.  There was "conflict between the claimant and her managers in a number of areas from early on in the claimant's employment".  Over the 3 years of employment the claimant was an outspoken critic of her line managers, senior management, the acting head teacher and her successor and the Chair of Governors and had "strong and well documented views on various matters which she raised frequently".  The School also believed the claimant was colluding with parents of pupils and stirring up trouble which generated complaints against the School and its management.   Over the same period concerns were expressed about the claimant's performance.   

The inevitable happened and following an incident at School the claimant and another staff member were subject to disciplinary action.   The claimant then lodged a grievance against a witness in the disciplinary proceedings after finding a statement on a printer setting out evidence against her.  She was then signed off sick with stress.  

The claimant was an American and her fixed term contract was due to expire concurrently with her visa - something which was imminent at the time of the disciplinary action.  The School may have seen this as their get of jail free card and did not seek to discuss renewing the visa with the claimant instead deciding that they would let both the visa and her fixed term contract expire.  However unknown to the School the claimant applied for and obtained a short extension to the visa herself.  The School did not though believe the claimant that an extension had been granted and she was dismissed when her fixed term contract expired.   

The claimant brought claims for ordinary unfair dismissal, wrongful dismissal and holiday pay, as well as whistleblowing detriment and dismissal claims which were based, in part, on some of the criticisms she had previously made of her colleagues. The employment tribunal rejected the whistleblowing claims (and therefore removed the risk of an uncapped award of compensation being made) but did find there had been an ordinary unfair dismissal.  At the time of the expiry of the fixed term contract the claimant could still have been working in the UK because of the extension to her visa.  As a consequence there was no fair reason for the dismissal when it occurred. However, compensation was limited to the period of the visa extension which was only 6 weeks.   

This claimant was, for want of a better description, something of a challenge to manage.  It is easy to be wise after the event but it is perhaps surprising that the employer did not seek to dismiss the employee at an earlier stage (including before she accrued unfair dismissal rights at the 2 year point).  Given the employer managed to defend a whistleblowing claim 3 years into the employee's employment, it seems reasonable to conclude that they would also have done so after, say, 6 or 9 months.   To that extent, making no decision was probably worse than the risk of making a bad decision - the employer could have saved themselves months if not years of dealing with a problematic employee and the negative impact her criticisms must have had on the working environment for all involved.   

There is a reason why there is a qualifying period before an employee can claim unfair dismissal and taking the decision to dismiss someone in advance of that period being accrued is not underhand or inappropriate.  Risk cannot be entirely avoided by dismissing at an early stage (because of the possibility of whistleblowing, discrimination or other claims which do not require qualifying service) but months if not years of stress could have been avoided for all involved had the employer been more proactive.  Good use of probationary periods (including extending them if necessary) and a robust management style appropriately exercised are more likely to lead to successful outcomes for employers when dealing with difficult employees than doing nothing - employers shouldn't be scared to take action.

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