Protected conversation (appreciate any prompt responses as directors want to act today!!)

[rlellie14]

Hi, we have 3 long term employees who are underperforming, have bad attitude and are dragging performance of the department down. Considering their personality we don't feel there would be much hope of turning them around. Ideally we would like to wave goodbye to them without any long and tedious performance/disciplinary reviews.
Our proposal is to have a protected conversation. But a few questions:
- Are we able to say that their performance has not been good and we may start disciplinary action soon to address it?
- Are we able to say that the outcome of the disciplinary may not be good for them? (would this be seen as pre-judging any disciplinary outcome?)
- they are all aged around 60-61. Could this be an issue considering they have no disabilities or any other obvious factor that would leave us open to discrimination (it's 2 men/1 women, white, health ok etc). May the age thing render us a bit vulnerable, even though this is a protected conversation (and age is not an issue in our decision or their performance and will not be brought up).
Thanks for any advice!

 

[Gyumri]

Ideally we would like to wave goodbye to them without any long and tedious performance/disciplinary reviews.

You must stick to the disciplinary process even if you think it is a waste of time so that if you do decide to dismiss then it is regarded as fair and reasonable.

Are we able to say that the outcome of the disciplinary may not be good for them? (would this be seen as pre-judging any disciplinary outcome?)

Yes.

I wouldnt hold discussions on a without prejudice basis - in particular because you want any Employment Tribunal to see that you have acted openly and fairly.

 

[IanSuth]

deleted

 

[ChrisCallaghan]

Short answer is don't act today. Take professional advice otherwise the directors could be opening themselves up to a nightmare.

One for @Newchodge

 

[rlellie14]

You must stick to the disciplinary process even if you think it is a waste of time so that if you do decide to dismiss then it is regarded as fair and reasonable.

Yes.

I wouldnt hold discussions on a without prejudice basis - in particular because you want any Employment Tribunal to see that you have acted openly and fairly.

thanks. Just the point about sticking to the disciplinary process - if they refuse any offers made in the protected conversation then yes obviously disciplinary process is an option, but are you saying we need to have gone down the disciplinary route before the protected conversation?

 

[Paul Kelly ICHYB]

It is imperative that you get good professional advice on how to proceed as one foot wrong could cost you dearly.

Someone like @Newchodge (there are others) on this forum can save you time, hassle and costs!

 

[Newchodge]

First of all, how have you come to the position where you have 3 members of staff that you want rid of TODAY, when you appear to have done absolutely nothing about them up to today? You have put yourselves in an impossible situation.

Yes, you can have a protected conversation with them, as long as you abide by the rules and make absolutely certain that it IS a legal protected conversation. Yes, you can tell them why you want to get rid of them, yes, you can tell them what you intend to do if they don't agree to go. You also need to offer them enougfh money to make it worth their while. That will not be cheap.

If any of them does not accept you will need to start the disciplinary or capability process from the beginning. You cannot fairly dismiss someone for doing something that they have been allowed to do for a considerable period of time. You cannot assume that you cannot turn it around. You start with an informal discussion during which you set out what is expected of them going forward, with timescales. Then, if that doesn't work, you have a meeting at which you give a first stage warning and set out what is expected of them, with timescales. Then, if that doesn't work, you have a meeting at which you give a next stage formal warning and set out what is expected of them, with timescales. Then, if that doesn't work, you have a meeting at which you give a final stage formal warning and set out what is expected of them, with timescales. Then, if that doesn't work, you have a meeting at which you dismiss. Then you hear their appeal against dismissal.

Then you probably prepare for the unfair dismissal case.

 

[Newchodge]

First of all, how have you come to the position where you have 3 members of staff that you want rid of TODAY, when you appear to have done absolutely nothing about them up to today? You have put yourselves in an impossible situation.

Yes, you can have a protected conversation with them, as long as you abide by the rules and make absolutely certain that it IS a legal protected conversation. Yes, you can tell them why you want to get rid of them, yes, you can tell them what you intend to do if they don't agree to go. You also need to offer them enougfh money to make it worth their while. That will not be cheap.

If any of them does not accept you will need to start the disciplinary or capability process from the beginning. You cannot fairly dismiss someone for doing something that they have been allowed to do for a considerable period of time. You cannot assume that you cannot turn it around. You start with an informal discussion during which you set out what is expected of them going forward, with timescales. Then, if that doesn't work, you have a meeting at which you give a first stage warning and set out what is expected of them, with timescales. Then, if that doesn't work, you have a meeting at which you give a next stage formal warning and set out what is expected of them, with timescales. Then, if that doesn't work, you have a meeting at which you give a final stage formal warning and set out what is expected of them, with timescales. Then, if that doesn't work, you have a meeting at which you dismiss. Then you hear their appeal against dismissal.

Then you probably prepare for the unfair dismissal case.

And just to add - you treat each of them as a separate individual.

 

[rlellie14]

First of all, how have you come to the position where you have 3 members of staff that you want rid of TODAY, when you appear to have done absolutely nothing about them up to today? You have put yourselves in an impossible situation.

Yes, you can have a protected conversation with them, as long as you abide by the rules and make absolutely certain that it IS a legal protected conversation. Yes, you can tell them why you want to get rid of them, yes, you can tell them what you intend to do if they don't agree to go. You also need to offer them enougfh money to make it worth their while. That will not be cheap.

If any of them does not accept you will need to start the disciplinary or capability process from the beginning. You cannot fairly dismiss someone for doing something that they have been allowed to do for a considerable period of time. You cannot assume that you cannot turn it around. You start with an informal discussion during which you set out what is expected of them going forward, with timescales. Then, if that doesn't work, you have a meeting at which you give a first stage warning and set out what is expected of them, with timescales. Then, if that doesn't work, you have a meeting at which you give a next stage formal warning and set out what is expected of them, with timescales. Then, if that doesn't work, you have a meeting at which you give a final stage formal warning and set out what is expected of them, with timescales. Then, if that doesn't work, you have a meeting at which you dismiss. Then you hear their appeal against dismissal.

Then you probably prepare for the unfair dismissal case.

many thanks for the advice, really appreciate that. Yes it came out of a review of what happened over a recent v busy period - many temps we had in performed far better than these 3. Changes of management have meant unwillingness to tolerate it hence the desire to act now (all accept this should have been dealt with a long time ago).

 

[IanSuth]

Suggest an initial meeting just saying "Due to recent management changes there is going to be a tightening up/formalising of performance management and you will be having individual meetings with people to lay out expectations as part of this process"

That allows you to let them know what is coming gently - then you have the individual meetings, lay out their individual performance targets and how they will be measured and take it from there.

If you are lucky they either buck their ideas up or at least one sees the writing on the wall and walks saving you the hassle/cost of getting rid

 

[Gyumri]

are you saying we need to have gone down the disciplinary route before the protected conversation?

Have a look here for the answer: They are reserved for situations were as yet there is no real dispute

Ten years on: Protected Conversations and S111A Employment Rights Act 1996

S111A ERA 1996 allows an employer to conduct confidential discussions with an employee to agree terms for the employee’s exit. A decade on from the introduction of this provision, we consider its application in practice and why it remains underused.

www.shoosmiths.com

 

[WaveJumper]

As above but I also think you should take a look at how you are recording and maintaining staff training what systems have you got in place, what records (written) have you got so far. having no controls or HR systems in place leaves you open to getting mauled when a employee takes you to a tribunal.

ACAS is always a good site to visit for advice on just about every HR topic you might need

Disciplinary and grievance procedures | Acas

How workplace disciplinary and grievance issues should be handled.

www.acas.org.uk

 

[Mark James]

Sack them because you said their white. No good.. get rid.

 

[Rubestuesday]

Hi, this may be late and I am an employment law goody two shoes. Any disciplinary has to follow a fair process (i.e. You cannot enter into such a process with your mind made up). A tribunal will check whether your fair process conforms to the ACAS Code of Practice. Stated case known as 'Polkey' states that if not a fair process it does not matter whether a fair process had been performed and arrived at same conclusion. It is the process that is important. If not followed then damages are awarded.