The problem employee or the problem process? Five signs an employment issue is becoming unnecessarily risky

Sometimes an employee genuinely is difficult. There may be persistent performance problems, misconduct, poor attendance, conflict with colleagues or behaviour that the business cannot reasonably continue to tolerate. But there comes a point in some employment matters where I stop looking primarily at the employee and start looking at the employer’s process instead.

That matters because even where there was a legitimate problem to begin with, a badly handled process can create a much bigger one. An employer can turn a relatively straightforward management issue into a grievance, discrimination allegation, tribunal claim or prolonged dispute simply by the way it responds. There are five warning signs I tend to look for.

1. Everybody remembers the problem, but nobody recorded it

One of the most common things I hear is: “This has been going on for months.” The obvious next questions are: was there a meeting? Was anything written down? Was the employee spoken to? Was there an email to HR, another manager or anybody else at the time? Is there anything contemporaneous that supports the history the business is now relying upon? Sometimes the answer to all of those questions is no.

The employer may genuinely remember repeated problems, but establishing a pattern retrospectively becomes much harder when nothing was recorded as events happened. “Everyone knew about it” is not the same thing as a dated note showing what happened, what was discussed and what the employee was told. That does not mean every minor management conversation has to become a formal HR record, but if something matters enough that the business may later want to rely on it as part of a pattern of conduct, performance or attendance, some sensible contemporaneous record can make an enormous difference. Otherwise, six months later the employer can find itself trying to build a case out of memories rather than evidence.

2. The employer’s story keeps changing

Another warning sign is when the account changes every time the same question is asked. Dates move. Details appear that were not mentioned originally. One manager gives one explanation and another gives a different one. Sometimes even the reason the employee is said to be a problem seems to change as the conversation progresses.

Not every inconsistency means somebody is being dishonest. Memories are imperfect, different managers may have seen different parts of an incident and poor record keeping often creates uncertainty. But if the employer cannot give a coherent account of what happened, it becomes extremely difficult to put a fair and understandable case to the employee.

I have had situations where, simply by asking a client to go through the chronology carefully, it becomes apparent that their own version does not quite work. At that point the answer is not to press ahead and hope the employee does not notice. It is to stop and establish what can actually be supported. Before challenging an employee’s credibility, the employer needs to be reasonably confident in its own.

3. The evidence no longer matters because somebody has already decided the outcome

This is where an employment process can become particularly dangerous. An allegation is investigated and the evidence does not support it, but somebody in management still says, “Well, I think she did it.”

An investigation is not there to validate what the employer already believes. It is there to establish the facts. If the evidence takes the business in a different direction, it has to be prepared to follow it. An investigation which is simply being used to validate a decision already taken is not doing the job an investigation is supposed to do.

Sometimes the problem goes further. One employee receives dramatically different treatment from another who did something similar, or it becomes increasingly obvious that a particular manager simply does not like the person involved and has been building a case against them. That is when the supposed “problem employee” may not actually be the biggest problem the business has.

A disciplinary process should not be used to reverse-engineer a dismissal that management has already decided it wants. If the employer wants someone gone regardless of what the investigation establishes, it needs to recognise that before the process becomes little more than window dressing. This becomes even more important where disability, discrimination, whistleblowing or another protected issue appears. A process that already looks inconsistent or predetermined can create considerably greater legal exposure if the employee can also say that the treatment followed a protected disclosure, discrimination complaint or other protected act.

4. The investigation keeps getting longer and the allegations keep getting wider

Delay is not necessarily evidence that something has gone wrong. A fair investigation can take time, particularly where evidence is difficult to obtain, witnesses are unavailable or genuinely relevant new information emerges. The warning sign is unexplained delay combined with an investigation that keeps expanding.

Sometimes it starts to look as though the employer is searching for something, anything, that will justify the outcome it wanted in the first place. An employee may be suspended over one allegation, only for the investigation to turn into a catalogue of every minor irritation management can remember from the previous two years. If the issue was serious enough to matter at the time, ask why it was not dealt with then.

That does not mean genuinely new evidence should be ignored. If an investigation uncovers another serious issue, the employer may properly need to look at it. But if that new matter is going to form part of disciplinary action, the employee needs to understand what is being alleged and have a fair opportunity to respond to the relevant evidence. There is a difference between following relevant evidence and turning the investigation into a fishing expedition.

Be particularly cautious about records created retrospectively as well. There may be perfectly legitimate reasons to prepare a later note or chronology, but it should be clear when and why it was created rather than being presented as though it were a contemporaneous record.

5. The business has stopped making commercial decisions and started making emotional ones

The final sign is when the conversation changes from “What is the right way to deal with this?” to “How do we get rid of this person?” Once frustration and personality clashes start driving the process, proportionality often disappears. Every interaction is interpreted negatively, minor issues become evidence of a larger character flaw and management time and professional fees begin accumulating around a dispute which may no longer make commercial sense.

Sometimes dismissal will still be the appropriate outcome. Sometimes the answer is better management, clearer expectations, training, mediation or accepting that an allegation simply was not proved. The process should lead to the outcome. The desired outcome should not manufacture the process.

That commercial perspective matters because employment disputes cost far more than legal fees. They consume management time, distract other employees, affect morale and sometimes damage relationships with customers or regulators. Being determined to “win” against an employee can become a remarkably expensive business strategy.

When it is time to tap the brakes

One of these problems on its own may be fixable. When several appear together, I become much more concerned. Poor records, changing accounts, predetermined conclusions, an investigation that keeps expanding and managers who have become emotionally invested in removing the employee are a particularly difficult combination.

If the business has not already taken independent advice, that is usually the point to consider it. If advisers are already involved, it may be time for them to tap the brakes and have a frank conversation with the person instructing them. Occasionally that conversation may need to go higher within the organisation. If a manager is driving a process which is becoming legally risky or is likely to cost the business significant money, protecting the business may mean telling somebody more senior that the problem is no longer simply the employee.

Poor procedure does not automatically create a tribunal claim. But where the ACAS Code applies, an unreasonable failure to follow it can also affect compensation if the dispute ultimately reaches an employment tribunal. That can be an uncomfortable conversation, but it is considerably easier than explaining later why an avoidable workplace issue was allowed to become an expensive dispute.

The question worth asking throughout is therefore not simply, “Do we have a problem employee?” It is also: “Are we handling this in a way that is making the problem worse?”

Aubrey International supports employers with difficult employee relations, workplace investigations and disciplinary processes where an independent view can help distinguish the underlying employment issue from risks being created by the process itself.

Practical support. Real solutions.