Managing difficult employees in the care sector
This article considers some tops tips for managing employees, with a particular focus on difficult employees.
In the care sector, managers must consider the interests of their residents and staff, their professional obligations, input from families, and the overall objectives of the facility owners. These sometimes conflicting interests can result in a very challenging balancing act.
Furthermore, it’s extremely likely managers will have to manage a difficult employee at some point in their career (if not on multiple occasions). Whilst these managers will have the requisite sector experience to perform their managerial role effectively, they may not have had the benefit of the training required to handle staff issues and, in particular, difficult employees. These issues can escalate quickly, resulting in the commencement of a time-consuming, formal procedure and the risk of a costly Employment Tribunal claim.
Personnel
It’s important that the correct people are dealing with the matter in question. In most instances, this will be the employee’s line manager; however, in some circumstances, this may not be appropriate. A care home management structure may not provide for three independent managers to consider the different stages of a formal procedure so managers may need to call upon an independent, senior carer to investigate a matter. Difficult employees are more likely to raise concerns about who is dealing with a particular issue and, whilst these concerns may be disputed, it can sometimes be best to bring in someone else to chair the meeting to avoid unnecessary delay and reduce the grounds for any subsequent appeal.
Policies and procedures
The company should have non-contractual policies and procedures which clearly set out what is expected of staff in a range of circumstances (i.e. what to do in the event of a resident fall) and how the company will manage a particular issue as well as professional standards to adhere to (NMC Code of Conduct and CQC Fundamental Standards). Clear policies can prevent an employee from successfully arguing that they were not aware of the standards expected of them. Difficult employees are more likely to raise issues if the procedure is not precisely adhered to so managers should take the time to review the company’s procedure and identify whether or not they have the flexibility to vary it if need be.
Gather information
It’s vital the manager has objective and factual information to enable them to discuss the concerns they have with the employee. For example, if a carer is not completing care plan records as required, these should be used to demonstrate the concern and to find out what is happening and why. A failure to deal with a genuine concern fairly and objectively at the outset can result in any subsequent penalty being unfair and give a difficult employee ammunition unnecessarily. Once a matter escalates in this way, it is difficult to remedy retrospectively.
Plan & control the meeting
Meetings must be held in private and managers should plan what they will say and what the next stage is – for example, an informal warning or period of monitoring. Informal meetings are usually conducted by one person. Although it is tempting to take a colleague to an informal meeting with a difficult employee, this can unnecessarily escalate the matter in terms of the employee also wanting a companion or being overly defensive which can set the tone in the longer term. Furthermore, it implies a degree of weakness on the part of the manager which a difficult employee is likely to use to their advantage.
Timing
The timing of a meeting should not be underestimated. Telling an employee that they are performing poorly on a Monday morning or just before a period of annual leave could prompt an overly adverse reaction; however, speaking to them later in the day and towards the end of the week will give them time to digest what has been said outside of work. This is particularly important if you are dealing with a difficult employee.
Address the matter quickly
In many instances, addressing an issue informally and as soon as it arises is all that is required to bring about the desired result. An employee who is informally told their performance has slightly dipped is more likely to respond positively compared to an employee who is threatened with formal proceedings because their performance is well below par with no previous mention of these concerns. This is even more important in the care sector as the company owes a duty of care to its residents. Unfortunately, these early conversations are too often avoided because the manager does not wish to have a difficult conversation, particularly if the employee can be difficult.
Monitor and follow up
Once the manager has discussed the matter with the employee, whether it is record keeping or sickness absence, they must ensure that they follow up – even if this is simply to acknowledge that the employee has modified their conduct or performance. If the employee has not complied with what was requested of them, it is vital that the manager follows up and, at this point, considers if a more formal procedure is now required. Formal procedures are lengthier, particularly when dealing with a difficult employee who may take a period of sickness absence in response to the situation, so the longer the company waits to commence them, the longer the employee in question will be in situ.
Document everything
The importance of this should never be underestimated – particularly if the manager is dealing with someone whose prepared to misrepresent what truly happened. Ultimately, if the matter becomes contentious, notes made at or shortly after the meeting confirming the manager’s position on what was said should tip the balance in their favour if it comes to deciding one person’s word against another’s. This will also assist the company in the event they need to report a Registered Nurse to the NMC regarding conduct concerns.
Be consistent
It can be tempting to address all instances of poor performance or conduct with a difficult employee. However, managers should ensure that they are not only addressing this conduct with the difficult employee and disregarding the same conduct elsewhere. An example may be carers using their mobile phones during work – if a manager is going to address this with one employee and others are doing it too without consequence, it could give rise to allegations of disparate treatment and, therefore, allegations of discrimination.
Suspension
In the care sector, when there are serious concerns about an employee’s performance or conduct, the employer may wish to suspend the individual pending an investigation to ensure that no harm comes to any residents in the interim. However, in certain circumstances the suspension itself could give rise to a constructive unfair dismissal claim for the suspended employee and a particularly difficult employee is more likely to take issue with this. In this situation a careful balancing act is needed between the duty owed to residents and the duty owed to the employee and, therefore, an alternative to the suspension may need to be considered.
Dealing with staff issues is all about being reasonable but, when dealing with a difficult individual, this standard can be difficult to attain. Seeking employment law advice about what to do in the early stages of an employee issue can be the difference between confidently addressing the matter and inadvertently making a mistake that bolsters the employee’s position and any subsequent Employment Tribunal Claim. Our Employment Team regularly advise the care sector in respect of all employment issues, including investigations. If you wish to get in contact, please contact Nicole Adams on nicole.adams@clarkewillmott.com or 0345 209 1379.
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