When things go bad: managing the serial complainer

In this article we share some top tips for effective performance management of the employee who challenges at each step, making that process as difficult as possible.

The situation

You have an employee whose under performance has previously been unchallenged for various reasons. Finally, when the time comes to tackle the issue through a performance management process, the employee responds in a manner which seeks to throw the process into disarray, including: getting signed off as unfit for work, bringing a complaint of bullying against the line manager (and others), alleging that team conversations are discriminatory and making a data subject access request.

1) Don't panic and keep it simple

It is easy to become intimidated by the number of allegations and become derailed by the potential of having to deal with multiple investigations that might be managed by different policies and procedures. Wherever possible, bring things back to basics. Do these complaints arise out of the original performance issue i.e. is the employee saying that they are underperforming because of the alleged bullying and/or the behaviour of colleagues in the office? If so, these are all matters that are capable of being investigated and contained within a single process.

If it is clear that the allegations are separate, you should generally be able to investigate each concurrently.

2) Be consistent

Ensure that you follow a process in the same way as you would for any other, more straightforward matter. For example, if you would normally ask an employee who reports as unfit for work to attend an appointment with your occupational health provider, make sure that you do the same here. Similarly, do not overreact to the situation by asking the employee to attend an occupational health assessment earlier than might otherwise be the case. Wherever possible, maintain control over the process and do not allow the employee to dictate the pace.

3) Be prepared to push back

"I'm off sick so cannot attend the investigatory meeting" is often the response received. As an employer, you are entitled to test this position and obtain information from the employee's GP or occupational health adviser to confirm. Where confirmation is received, you can either decide whether to wait to see how long the absence will last (taking the duration of the fit note as the starting point) or give the employee some alternative options. Those options could include:

  • submitting a series of written questions and asking the employee to respond in writing;
  • offering to conduct the meeting by phone, Skype or webcam;
  • offer a neutral venue.

There is a balance to be struck between moving the process forward and being overhanded. Much will depend on how genuine and serious the health condition is considered to be.

4) Keep the lines of communication open.

Out of sight, out of mind? It can be easy for an employee who is away from the workplace to feel isolated and to miss out on the regular updates typically shared in team meetings and one-to-ones. These little things can appear to be more significant when an employee feels that they are already under attack. Similarly, the longer the period where there is no contact between the parties the more difficult the next conversation tends to be. It is important therefore that communication links, even if only by email, are maintained and that employees are kept up- to- date.

5) Assess the risks and act accordingly

Take a moment to consider the possible outcomes of your particular case. Are you going to be able to resolve the situation through amicable means or has the relationship deteriorated to such an extent that either a dismissal or settlement may be an option? If you are confident in the process, it will set the right tone to see things through and defend any case.

If a deteriorating relationship is a genuine concern, conduct an objective assessment of the types of claim that the employee may be able to bring and weigh that against the cost (management time, stress on the rest of the team etc.) of continuing with the process. If the assessment identifies that the cost of continuing outweighs the cost and risks of the employee presenting a claim, you may wish to explore the possibility of a protected conversation. Alternatively, you may decide to proceed with the formal process.

In some scenarios, the behaviour of the individual may result in their dismissal either for conduct reasons or, in exceptional cases, some other substantial reason. In such cases, the employer may well decide to defend any subsequent case, in order to make it clear to other employees that such behaviour will not be tolerated and that formal processes cannot easily be derailed.

6) Take stock and identify any learning points

Every day is a school day. Each situation is different and it is likely that there will be something that, when assessed objectively, you might choose to do differently a second time around. Often, that learning point will be to address the concerns at an earlier stage so that the reaction is not so significant and is more manageable.


This information is for general information purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Please contact us for specific advice on your circumstances. © Shoosmiths LLP 2024.



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