Dealing with difficult staff

Your new staff member is perfectly competent at what he does, but his difficult personality makes his presence in your practice less than desirable. Mark Pipkin explains how the ability of an individual to do his job doesn't necessarily mean he can keep it

It is easy for a sacked employee to describe their dismissal as unfair if the quality of their work has never been called into question, but are there other justifiable reasons for giving someone their notice?

The Court of Appeal decided in a recent case (Perkin v St George's Healthcare NHS Trust) that an employee's difficult personality can amount to a fair reason for dismissal, depending on how the personality manifests itself in the workplace. To fairly dismiss an employee, an employer must show two things. First, that the reason it dismissed the employee was one of the fair reasons set out in the Employment Rights Act 1996; and second, that the employer acted reasonably in treating this as sufficient reason for dismissing the employee.

The most commonly relied upon 'fair' reasons are conduct and capability. A dismissal can also be 'fair' for 'some other substantial reason of a kind such as to justify the dismissal of an employee holding the position the employee held'.

A Mr Perkin was director of finance employed by St George's Healthcare NHS Trust, where he had worked for 16 years. During this time there could be absolutely no criticism of either his competence or his integrity. However, there were issues with his personality, inter-relationships with colleagues and management style. For these reasons he was asked to resign by the chairman of the Trust. Perkin refused to do this and at the same time raised a grievance against the Trust. This resulted in a disciplinary hearing being convened.

Aggressive attack
At the hearing Perkin launched an aggressive attack upon the honesty and integrity of his immediate superior, the chief executive of the Trust. Following the hearing, Perkin was dismissed and paid in lieu of notice. It was felt that due to the comments made by him in relation to the chief executive, they would be unable to work together in the future. At the employment tribunal it was unanimously decided that the reason for dismissal was on grounds of conduct or 'some other substantial reason', both of which were potentially fair. Perkin's subsequent appeal against the decision was dismissed by the Employment Appeals Tribunal. Perkin then appealed to the Court of Appeal on the grounds that he had been dismissed on account of his personality and that personality as the reason for dismissal was not capable of constituting 'conduct'.

The Court of Appeal held that the appeal should be dismissed. While they emphasised that personality of itself cannot be a ground for dismissal, they made it clear that if an employee's personality manifests itself in such a way as to bring reactions of the employee within the sphere of capability, conduct or one of the other potential fair reasons for dismissal, this can provide a potentially fair reason for dismissal.

When a situation gets so bad that termination of employment has to be considered, it can often be tricky to assemble cogent evidence to justify dismissal on grounds of misconduct or lack of capability. The Court of Appeal's decision in this case provides a useful, authoritative confirmation of earlier cases, establishing that in appropriate circumstances a personality clash can in itself constitute 'some other substantial reason' and therefore a potentially fair reason for dismissal. The case does give comfort to employers who are faced with difficult staff who, while doing a good job technically, are extremely difficult to work with because of their personality.

This means that there could be instances where, due to the intransigence of the individual, the employer can successfully argue that warnings would make no difference. Employers should seek advice on the best way to deal with employees who have difficult personalities that impact on relationships at work.

Difficult employees can make you question why you employed them in the first place. Unproductive, confrontational, negative or undermining, they can drag everyone else down with them and stop a team achieving its goals. Where an employee is good at their job they can still behave in such a way that means an employer cannot work with them. If they are bullying and intimidating to other employees then the problem becomes a clear conduct issue. The Court of Appeal's finding here suggests that where an employee's personality manifests itself so as to affect their conduct or capability then it is possible to dismiss them fairly.

Where workers are difficult in a way that does not clearly constitute conduct or another fair reason for dismissal then it is not as clear-cut. For example, where someone's performance is good but it is part of their nature to constantly complain and undermine the employer in a way that impedes the business, it is first necessary to evaluate as to whether they have a point. If they do not you should stress that their attitude is unacceptable. Where there is no improvement, it may be necessary to go down performance or even disciplinary channels, although it is of course imperative that a clear and fair procedure is followed.

Overall, the rule that should be followed by employers in dealing with difficult employees is the importance of following fair, transparent procedures. There must be clear evidence of instances of the problems caused by the employee's difficult personality and the employee should be given a chance to answer any allegations.