You have tried to counsel, to mediate and to make every adjustment you possibly can, but in the end you have run into a single insurmountable fact about your employee with the attitude – you just can’t bear him any longer. He is the dragging anchor of your otherwise happy little ship and must be cut loose for everyone’s benefit, potentially including his own.
We know that Employment Tribunals get very sticky about conduct or performance cases dressed up to look like “some other substantial reason” loss of trust and confidence clashes. The ETs see this (often entirely properly) as the employer’s attempt to side-step the usual fair dismissal requirements of prior warnings, time to improve, etc. To the extent that your employee’s attitude problem manifested itself primarily through conduct or performance, that is what you should ideally do. This is partly because it might take the shock of formal procedures to jolt your employee out of whatever dark place is causing his demeanour to others, and partly because if it doesn’t, you will have substantial evidence for SOSR purposes that the situation is irretrievable.
Equally, we know that in the real world the chances of improving a bad attitude by punishing it are as close to zero as makes no difference. Going through those formal steps and copping all the grief and flak they will inevitably receive in return is a daunting prospect for most managers, so it often doesn’t happen as fully as it should, or maybe at all.
So on the premise that all else has failed, here are a couple of other options for bringing the matter to a close:
(i) Start a protected conversation – “You are either actually very unhappy here or doing an excellent impression of someone who is, and we are finding that increasingly wearisome to the point where we think that formal steps to address the situation have become necessary. However, we recognise that this would be difficult all round and far from guaranteed to make the necessary difference. Therefore, if you wish, we can talk about terms for your moving on?” The employee cannot be compelled to have that conversation with you but even if he chooses not to do so, the realisation that his impact on others has been so great that his employer is wistfully mulling his departure could be of considerable value.
If you choose this path, be prepared to recognise that you are prospectively cutting corners and that you must pay for the privilege. You want your offer to be accepted and toiling laboriously through a performance or conduct procedure will take time and salary cost which will be saved if this works. Therefore, you have to suppress your rampant irritation that the employee is potentially getting a substantial sum of money for being a total pain.
(ii) Propose the employee’s dismissal on the grounds that the relationship of trust and confidence has irretrievably broken down. Despite the ET’s reluctance, this can be a valid basis for a fair termination, but you are going to need concrete evidence of the harm your employee’s attitude issues are doing. That means complaints from others, individual instances of difficult behaviours, any evidence of direct loss or damage through the consequences of it – opportunities unchased, collaborations failed, deadlines missed, etc. That does require the reduction to writing of things which may individually seem trivial, but it is all those little examples which aggregate into the necessary picture of someone whose manner with his colleagues is so corrosive that they (and hence you) cannot reasonably be expected to carry on.
Proving a fair dismissal for “attitude” alone is a very tough gig, but at worst the collection of that evidence will give you grounds to argue that the employee’s compensation should be reduced by his contributory fault, and/or that because of those issues he would shortly have been dismissed fairly anyway.
Attitude by itself is often scarcely severable from personality. There is some authority to suggest that personality alone cannot be a fair ground for dismissal, but as always with unfair dismissal matters, it all depends. What we are left with in relation to these “attitude” cases is the importance for the employer of picking it up swiftly, though in no sense necessarily formally. It may just be the product of something quite outside the workplace, but it is far more likely to be borne of lack of awareness than any deliberation. We all have an element of discretion in our workplace behaviours. If they continue once raised with the employee, however, the picture quickly moves to (at best) an indifference to one’s impact on one’s colleagues. The worst thing the employer can then do is let either the employee in question or those colleagues believe that you think that’s OK.
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