We also strongly recommend speaking with references before any offer is made but make sure you have the applicant's written permission to contact those references.
Once an employer decides to make an offer, there are a couple of further protections they can put in place. If the employer is a small business (less than 20 staff) the 90-day trial period is still available. These clauses can be a bit tricky, so we recommend seeking advice first.
The other option is a probationary period which can be used to address performance in the first stages of employment. However, this article doesn't just look at pure performance concerns. Increasingly we see cases where the person can do the job but they are driving everybody around them up the wall.
Once they are part of the team
If an employee has hired a person and later discovers they are not the great fit they seemed at their interview, there are a number of options. The first step is this most difficult: really figuring out what the employee is actually doing/not doing which is causing the problem. Those facts/behaviours will determine the next move.
Performance
If the issue relates to how they perform the job tasks, then that may well be a performance issue. Addressing that can be as straightforward as informal coaching, a clear direction to do a task in a certain way, or a formal performance improvement plan which can end in dismissal.
Misconduct
If the behaviour breaks a house rule or policy, or goes against a social or moral behavioural norm, then it might fall into the misconduct category.
Employers can deal with low-level issues with informal coaching/reminders. More serious or repeated behaviours could possibly warrant a formal investigation and disciplinary process.
Personality/fundamental incompatibility
The most difficult types of behaviour are ones which are not strictly performance but fall short of misconduct. Examples of this are endless, but can include general negativity, disinterest, inflexibility and avoiding interaction with co-workers, or simply not being on board with the type of culture which the team has developed.
Culture differs between workplaces. Some highly value a serious and formal workplace in which a loud and "out there" staff member could ruffle feathers. Other workplaces are more dynamic, and a stuffy/formal staff member could bring that energy down.
The first question to ask is: "Is this really a problem?" Thankfully, people are all different and nobody is obliged to love everyone they work with.
There are also certain things that are risky for an employer to touch e.g. behaviours which relate to religious, cultural or medical requirements. Forcing social interaction on breaks/outside of work can be also be counter-productive to the end goal.
Where the behaviours are genuinely a problem, but don't fit neatly into a performance or misconduct box, an employer needs to get creative. Informal conversations can work, but care must be taken to focus on factual behaviours rather than personal traits.
For example, it would be legitimate to talk to customer-facing staff about the importance of presenting a positive smiling face but it may be risky to talk to them about "being negative/down/miserable".
In the most serious circumstances, and having followed a fair process, the law does allow for an employee to be dismissed where they are fundamentally incompatible with the workplace. It should be noted that these cases are rare and involve a lot of groundwork to try to get the employee to address the problems.
How can we help?
The way an employee's quirks and issues interact with a workplace requires a tailored approach. When the concern is about personal fit, the risk to an employer is higher as the criticisms are, by their nature, personal. They must be navigated with care and with the assistance of proper legal advice.
• David Grindle is director in charge of the Employment Law team at WRMK Lawyers. He has practised in this area of the law for 17 years.
