How to deal with problem employees and avoid tribunals

Employment laws change so frequently that if you tried to keep on top of them, you would probably go out of business. Or die miserably. The best way to avoid tribunals is for managers at all levels to think about behaviour. Hina Belitz and I have been employment lawyers for donkeys’ years and some things never seem to change – so we have knocked our heads together and come up with this simple set of rules:

Rule 1 – time and inclination (T&I)
In any employment dispute a manager will normally lose on the T&I front. Problem employees all know that they have nothing to lose and that the more trouble they make, the weaker your resolve. You lose time, money and much more, and eventually reach for your wallet. Practise your poker face and invent reasons why you might have plenty of T&I – the need to set an example and establish common standards is a simple one. Appearing contented and patient is surprisingly intimidating (think of Anthony Hopkins).

Rule 2 – keep it simple
The pen may be mightier than the sword but it probably creates more trouble, too. Remember, the more you say, the more ammunition the problem employee will have to attack. Simply dealing with volume exchanges creates a whole load of material and bigger legal bills. It can also tend to hide your best points. There may be many reasons for a dismissal, but the more notions you fling at the problem, the more legal issues will land on your desk.

Rule 3 – if you can’t prove it, don’t use it
In court it is only evidence that counts. A common example of this is the third-party witness. Commercial pressures from outside your business can be cited as a reason for enforcing change or even dismissals. Sometimes 'external pressure' is a cop-out because it saves you that awkward conversation (that is to say, it’s you, not the client who is dissatisfied) but think about it – do you want that important client to be ordered to attend a tribunal as a witness? Many cases end up with unjustified settlements because employers realise that they can’t meet their facts with good quality evidence.

Rule 4 – stick to the plot
Always diagnose the real reason before you take any steps. There are only five reasons for dismissing any employee: redundancy, misconduct, capability, breach of enactment (such as your driver loses her licence) or some other substantial reason (a catch all). If you call misconduct redundancy, you will lack credibility and this could cause a tribunal to find that it's something even worse, such as discrimination or whistleblowing.

Rule 5 – don’t make things worse
You may be thoroughly fed up with an employee, but always try to think of common interests. The most obvious of these is the employee's future. A dignified departure, reputation intact and a sense of closure make moving on (employment lawyers call it ‘mitigation’) easier. Don’t jump all over the employee, as this will be great evidence in support of a larger claim. Why make three months’ lost earnings into five years’?

Gordon Turner is an employment specialist at London firm Partners Law