Ask the expert: Can we promote a worker above their supervisor?

The question: Can we promote a worker above their supervisor?

We have a factory Manager who is responsible for all issues within the factory. He has not been undertaking his duties correctly and during his reviews has said that he felt poorly supported. We have employed a Production Manager to support him in his role and that Production Manager reports directly to him. It is clear that the Production Managers skill set is better than the Factory Managers and he would be better taking full responsibility. Can I promote him over his Manager, if so, how, and what are the downfalls?

It’s fair to say that whilst we have continually discussed the issues with the current Factory Manager, we have never formalised those discussions through fear of losing him and having no alternative (weak I know, but that’s how it’s been). Since the new person has come in it has become even clearer that the Factory Manager is failing to undertake his duties correctly – what can we do?

Legal advice:

Martin Brewer, partner, Mills & Reeve

There are two entirely separate questions here. As to the first, yes you can promote any employee on merit even if that means they leapfrog another employee in the process. You should follow a fair procedure in so doing.
As to the second question-you have thee options:

You can dismiss with no process. This will be unfair and you will have to pay compensation should he bring a claim for, say, unfair dismissal;

You can performance manage him, setting him reasonable targets to be achieved over a reasonable time frame and if he fails he will receive phased warnings leading to dismissal. This is likely to take weeks, possibly several months to achieve, but is a relatively safe option if you act reasonably;

You can offer him a deal and settlement of any claims using a compromise agreement, about which you should take specific advice. The deal is to resign rather than face the risk of a dismissal.

Martin Brewer can be contacted at [email protected]. For further information, please visit Mills & Reeve.

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Esther Smith, partner, Thomas Eggar

You have a number of options here. If you simply took part of the Factory Manager’s role away from him and gave it to the Production Manager there is a risk that the Factory Manager will claim that this amounts to a fundamental breach of his contract and resign, and claim constructive dismissal. It may not be a disaster if he goes, now that you have the Production Manager, but the resulting tribunal claim may be more of a concern!

Alternatively, now that you have the protection of the Production Manager in post, you could start to address the Factory Manager’s failings more formally in a capability/disciplinary process. This may give you grounds to take parts of his role away from him where he is failing, and having addressed this through the formal process is going to put you in a better position, assuming you have some objective grounds to support you concerns regarding his performance.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.