An employee is under-performing and spends most of his time using the internet and email for personal reasons. Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise on what his employer can do about it.

The question:

I have an employee with nine months' service on my small team of five people who support an external reseller base of around 350. This team is always busy, answering over 200 calls a day and processing around 250 documents as well as many other duties. This team relies on each other to dip into the workload.

All the other members of the team work hard and are conscientious. They feel understandably let down by the conduct of this other employee and I suppose by the fact that I have tried to deal with him in a fair, supportive way by micro-managing them and re-training, assisting with workload prioritisation etc. They feel this is taking too long and want him gone as they feel he does not put in the same hours or effort as them. He takes much longer to complete things and never gets through his day's work.

I had a meeting with him a couple of months ago about his constant use of the internet and company email system for personal reasons. I kept it informal but told him that it needed to stop in line with his contract where it states that it is a dismissible offence. This has also impacted on the amount of work he manages to achieve in a day which is nowhere near anyone else's capacity.

In the last week it has just come to light that despite my support on a daily basis, he has paid invoices which were not due, left contracts unprocessed, and had contracts and invoices in his drawers which needed to be processed. I absolutely do not have time to check every piece of work one person does every day, otherwise there would be no point employing him, I may as well just do it myself.

I am currently in the process of introducing performance and QA with associated appraisals (nothing whatsoever to do with this case) but these are not yet in place. I would like to take up both issues – the misconduct in terms of mails and the performance in terms of speed and accuracy of work. The business has previously managed these situations using the performance route with other employees so I know that I have to follow this trend. Those teams already had the performance paperwork in place.

Can I introduce both misconduct and performance as related in the investigation and potential disciplinary, on the basis that the mailing is affecting the volume and accuracy of work or should I hold two separate hearings, or just one but separate the issues? We want to give him the chance to do what the others do in terms of performance – however we know that this would not last. We would prefer he was gone, due to lack of trust. We are hoping he will take the resignation route, which many people do when faced with a disciplinary.

Legal advice:

Esther Smith, partner, Thomas Eggar

The answer is you can incorporate issues of misconduct and performance into the same disciplinary process, so long (as always) that the employee knows what they are being accused of and has a fair opportunity to respond to those charges.

However, as this employee only has nine months' service and you want to get rid of them, the best advice I can offer is for you to terminate their contract on notice in accordance with their contract. You do not need to follow the disciplinary route or indeed the statutory dismissal procedures as the employee in question has less than a year's service and cannot therefore challenge the fairness of his dismissal.

I would only suggest using the disciplinary procedure with an employee of this length of service if you really thought that there was scope to turn the issue around but if you feel he is beyond help, and you are keen to get rid, then I would just bite the bullet and dismiss.

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

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Martin Brewer, partner and employment law specialist, Mills & Reeve

This employee has less than one year's service so unless you are going to dismiss for an impermissible reason (for example a reason related to sex, race, age, sexual orientation, on certain health and safety grounds etc) the employee will not be able to claim unfair dismissal. In that sense therefore, you should not be overly concerned about the minute detail of procedure.

However, to be clear, if a dismissal in such circumstances could lead to an unfair dismissal claim you as the employer would have to prove what was the reason, or if more than one, the principal reason for the dismissal. Therefore it's important to keep separate issue of conduct and capability.

Having said that, usually this isn't a problem. In considering capability, conduct and the under-performing employee, consider the difference between the labels: capability means that the employee is not able (not capable) to do the work. Conduct applies where the employee makes a choice about whether to, or how they do it. They are capable but are in a sense deliberately not performing to your standard.

Looking at your issues it seems to me that you are able to say either that despite all of the support you have given, this employee is simply not capable of performing the work adequately or, alternatively he is capable but is just ignoring instructions etc. The former is capability, the latter misconduct. Opt for one and stick to the relevant process.

Martin Brewer can be contacted at martin.brewer@mills-reeve.com. For further information, please visit Mills & Reeve.

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