How to deal with a poor performer in 50 tweets…Part 3

This blog (originally published in March 2013) is being re-posted following our WordPress account being hacked, resulting in the loss of all our blogs prior to June 2017.

In Part 1 of this series of tweets I looked at 10 tips for encouraging good performance without having to resort to formal procedures.

Part 2 explored ‘Stage 1’ of a procedure that might be used when someone fails to respond to the motivating behaviours of their manager, and they need to understand that the continuing level of performance is not going to be tolerated indefinitely.

In this final part of this series I will look at how to continue with a procedure that, as far as it is possible, will ensure that if it comes to it, any dismissal will be fair.

You may have got this far without any specialist HR assistance, but if this is the first time you have used such an approach, you would be well advised to seek some HR or legal advice for the first time you do this.

When dealing with poor performance under a disciplinary or capability procedure, or just by following the steps in these tweets, it’s important to focus on improving the performance.

Giving somebody a warning should not be designed to encourage them to leave, it should be designed to encourage an improvement in the performance. If that’s achievable, it’s a much more cost effective solution than somebody leaving.

So, on with our last 20 tweets, and what would normally be described as Stage 2 of the procedure!

Tweet 31/50: Start again at tweet 16 – as modified below!

Meet with them and let them know that since the previous warning has not resulted in the required performance improvement, you will now have to move onto the next stage.

    Let them know that you want to discuss the situation at a meeting that may lead to a further warning. You will confirm the details in writing

Keep your eye on the ball here. Your goal should still be to get the performance improvement you are after. We will call this ‘Meeting 2’

Confirm ‘Meeting 2’ in writing and make it clear what your concerns are about. As well as this, deal with domestic details (time, place, who will be present etc.) and you should include any documentary evidence to which you will refer and advise them of their right to be accompanied. There are lots of useful templates for letters to deal with this type of process at http://www.acas.org.uk/index.aspx?articleid=1439.

Avoid unnecessary delay before meetings, but do give enough time to prepare. Usually, unless the issues are very complex, a couple of days may be adequate time for preparation, particularly when there have been extensive informal discussions. Your procedures may require a specific notice period for a meeting – typically 5 or 7 days.

If they ask for someone to speak in support of them (a witness), you will have to give the matter some consideration. You can ask them to get their witness to write a statement, rather than attend a meeting, but, in any case, employees rarely do this for performance issues. It is more common when you are dealing with poor conduct.

‘Meeting 2’, explain the issue (the performance shortfall and its impact), outline the evidence, hear what they have to say, and thoroughly discuss, before making your decision. You should be concentrating on the performance of the individual since ‘Meeting 1’, try not to dwell on stuff from further back!

If they have brought a companion with them, check if they have anything they want to say. They have a statutory right to ‘address the hearing’.

It is normally recommended that you have an adjournment before making a decision.

Assuming you decide to proceed with another warning, reconvene if you have adjourned and, deliver a warning (you can call it a second warning if that is what your procedure calls it).

Explain how you have arrived at your decision, demonstrating that you have heard any points that they have expressed.

Clearly confirm the performance issues, the standards you are looking for, the review period, additional support that might be available, and the consequences of the improvement not happening. Remember that if there is insufficient improvement this time, this may lead to the termination of their employment, and they need to be told this.

Tell them everything will be confirmed in writing and advise them of any right to appeal.

As last time, try to end on a positive next step. ‘I’m going to arrange for somebody in the Finance Team to sit down with you and see if there is a better way of organising the way you are keeping your records’.

Confirm everything in writing!

Make sure there is regular support during any review period – it will help ensure that the employee takes your concerns seriously.

You will have just completed ‘Stage 2’, what in many organisations will be called a ‘second written warning’.

So now things are getting serious, and the process so far may have taken you a month or two.

Tweet 32/50: Surprise, surprise, its back to Tweet 31/50 above, but this time around things will be a little different.

Adapt the bullet points above to reflect the fact that a possible outcome of this ‘Stage 3’ is that the employee could lose their job. You will need to review the situation thoroughly, and this time round you definitely will need to adjourn before you make your decision.

Tweet #33/50: Assuming you decide to dismiss (another option could be to extend their review period) tell them they will be dismissed and do it face to face. This will usually be with immediate effect with their pay in lieu of notice (check on the contractual and tax implications of this), outstanding holiday pay and compensation for any other benefits (Company car etc.) they are losing. Everything will be confirmed in writing and advise them of any right to appeal.

Tweet #34/50: Depending on the individual’s contract, you may decide to ask them to work out their notice (very unusual for poor performance situations) or put them on ‘garden leave’ in order to preserve any restrictive covenants – take some advice!

Tweet #35/50: Confirm everything in writing!

So, there we have it. How to deal with a poor performer in less than 50 tweets. So where have the rest gone?

They’re in Part 4, which covers how to arrive at an alternative solution that does not involve the need to follow this process which can often take two or three months, and be difficult for both the employee and the manager.

Tweet 36/50: Read on, the rest is available now!

Ken Allison | 27 September 2017 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone based support services to businesses throughout the UK.

This blog is not a substitute for taking legal advice!

 

How to get rid of a poor performer in 50 tweets…Part 2!

This blog (originally published in February 2013) is being re-posted following our WordPress account being hacked, resulting in the loss of all our blogs prior to June 2017.

In Part 1 of ‘How to get rid of a poor performer in 50 tweets’ I explored some tactics for avoiding getting as far as thinking about having to dismiss someone who is not performing.

Parting company with someone is expensive and time consuming, but nonetheless, sometimes necessary.

In the UK, where everyone has the right not to be unfairly dismissed once they have accrued the ‘qualifying service’ of one or two years service (the law changed on 06 April 2012), anxieties about falling foul of the legislation can prevent managers taking decisive action when an employee is failing to respond to concerns about their performance.

‘It will take too long’, ‘HR won’t back me’, ‘they’ll accuse me of harassment’ are frequent concerns.

The main thing to remember is that the law seeks to strike a balance between the employer who needs staff who can do their job, and the individual who needs to be treated fairly (told clearly, given the opportunity to improve, warned etc.).

Essentially, much of this process of ‘fairness’ is covered in the ACAS Code of Practice 1: Disciplinary and grievance procedures, (pick up an A4 ‘mindmap’ aide memoire) and many organisations will have their own procedures for dealing with this sort of issue.

If the employee you are dealing with does not have the ‘qualifying service’, you may decide not to follow this sort of procedure, but before you do that, check out ‘Has it really got easier to dismiss employees’.

Here I deal with the process for dealing with a poor performing employee who has the ‘qualifying service’ and has not responded to your informal efforts to improve their performance – see tweets 1 to 10!

Tweet #11/50: It’s the job of managers to set and uphold standards. Employees must be told what the standards are. You will need to be able to demonstrate that you have fulfilled your responsibilities in terms of providing any appropriate training if the employee is being asked to do something new, or if it is something that they could not have reasonably have expected to be able to do.

Tweet #12/50: Don’t be afraid of saying ‘this is how I want it done’. The ‘I’ word is very powerful, avoid blaming ‘the Company’ or ‘my boss’.

Tweet #13/50: You can move the goal posts, as long as you behave reasonably when you do this. Change is an accepted fact, and Employment Tribunals (ETs) accept that the content and standards of a role may change over time. How a job is performed, or the standards required are rarely contractual, but employers do owe employees a duty of ‘trust and confidence’ which in this context would mean, amongst other things, that changes should not be introduced without time to adapt, or as a means of making life uncomfortable for staff.

Tweet #14/50: Make sure that the problem really is the individual’s capability to do the job. If they have the skills, and are just not using them, then that could be poor conduct, and not poor performance.

So, let’s now assume that we are dealing with an employee who is not performing adequately, has not responded to our informal motivation (Tweets 1 to 10!), and so now we have to put things formally in order to ensure that they take the issues more seriously, and that we have evidence of a fair process should we not be successful in improving their performance.

Tweet #15/50: Write notes on your final ‘informal’ discussion – the one before you start to use the language of ‘warnings’. Writing notes during a discussion usually has a negative impact on the atmosphere, so you won’t want to be doing it at every meeting. You will, however, benefit from evidence that you tried to tackle the performance issues informally. You can write notes after a meeting (ETs accept contemporaneous notes as evidence, and this usually means written during a meeting or within 48 hours afterwards). In any case, it will be useful to have informal discussions confirmed in writing.

Tweet #16/50: Meet with them and let them know that since your informal discussions have not resulted in the required performance improvement, you will now have to move onto more formal action. Don’t worry if you do not have an organisational policy that covers this situation (much to a lot of people’s surprise, the law does not require you to have one), it is what you actually do that matters.

Tweet #17/50: Let them know that you want to discuss the situation at a meeting that may lead to a warning, and that you will confirm the details in writing. Keep your eye on the ball here. Your goal should still be to get the performance improvement you are after. We will call this ‘Meeting 1’.

Tweet #18/50: Confirm ‘Meeting 1’ in writing and make it clear what your concerns are about. As well as this, deal with domestic details (time, place, who will be present etc.) and you should include any documentary evidence to which you will refer and advise them of their right to be accompanied.

Tweet #19/50: They will need to know that the meeting could result in a warning – in most instances this will be referred to as a ‘disciplinary warning’, but some organisations have separate procedures for performance issues where it may be called something like a ‘performance improvement note’.

Tweet #20/50: Avoid unnecessary delay before meetings, but do give enough time to prepare. Usually, unless the issues are very complex, a couple of days may be adequate time for preparation, particularly when there have been extensive informal discussions. Your procedures may require a specific notice period for a meeting – typically 5 or 7 days.

Tweet #21/50: If they ask for someone to speak in support of them (a witness), you will have to give the matter some consideration. You can ask them to get their witness to write a statement, rather than attend a meeting, but, in any case, employees rarely do this for performance issues. It is more common when you are dealing with poor conduct.

Tweet 22/50: At ‘Meeting 1’, explain the issue (the performance shortfall and its impact), outline the evidence, hear what they have to say, and thoroughly discuss, before making your decision. You will want to avoid over formality at this stage, but you might find our ‘Handling Disciplinary Hearings’ checklist to be a useful guide.

Tweet #23/50: If they have brought a companion with them, check if they have anything they want to say. They have a statutory right to ‘address the hearing’.

Tweet #24/50: It is normally recommended that you have an adjournment before making a decision, but this is probably unnecessary for ‘Meeting 1’. ETs have accepted that formality is less important with performance issues than it is with conduct. An adjournment is probably only necessary if the employee introduces things that have not been said before, and that need further consideration.

Tweet #25/50: Assuming you decide to proceed with a warning, reconvene if you have adjourned and, deliver a warning (you can call it a first warning if that is what your procedure calls it).

Tweet #26/50: Explain how you have arrived at your decision, demonstrating that you have heard any points that they have expressed.

Tweet #27/50: Clearly confirm the performance issues, the standards you are looking for, the review period, additional support that might be available, and the consequences of the improvement not happening. Tell them everything will be confirmed in writing and advise them of any right to appeal. Most organisations allow appeals after any disciplinary action, but some only allow it after higher levels e.g. second or third.

Tweet #28/50: End on a positive next step. ‘So I’d like you to arrange to spend a few hours shadowing Joe who is good at cold calling, and see how he does things, then we’ll meet next week to review that and talk about how to improve X and Y’.

Tweet #29/50: Confirm everything in writing! The law does not require you to do this (and even the ACAS Code of Practice only says ‘it is usual’), but a failure to do this may make a case difficult to defend in front of an ET.

Tweet #30/50: Make sure there is regular support during any review period – it will help ensure that the employee takes your concerns seriously.

So, here in Part 2 we have completed the first stage of a reasonable procedure for dealing with poor performance where an individual has failed to respond to informal encouragement.

In many case there is no need to progress any further. The individual either improves or leaves!

In Part 3 we will look at completing this procedure, and also the alternative approach of agreeing an alternative mutually acceptable termination arrangement which in many instances will avoid the need to put the individual through an elongated procedure.

Watch this space!

All of these ideas are regularly explored in our employment law and http://www.paradigmpartners.co.uk/performance-management.htm courses.

Ken Allison | 19 September 2017 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone based support services to businesses throughout the UK.

This blog is not a substitute for taking legal advice!

How to get rid of a poor performer in 50 tweets…Part 1!

This blog (originally published in November 2012) is being re-posted following our WordPress account being hacked, resulting in the loss of all our blogs prior to June 2017.

Dress it up how you like, ‘how do I get rid of this poor performer’ is a question I frequently get asked at training events, presentations or over the ‘phone.

Often the decision maker is looking for an instant solution, usually motivated by a desire to avoid any interpersonal confrontation and investment in time.

Since we specialise in enhancing outcomes from the handling of employment law related people issues, this may not be surprising, but very often there is an embarrassed silence on the end of the phone when the manager or Director is asked whether they have told the individual that they are unhappy with their work.

Replacing employees is expensive, so the focus of any intervention should be to correct the performance so that the employee does not need to leave the business.

So, it’s not surprising that we start these ’50 Tweets’, with things you should be doing to avoid the necessity to start a procedure that may lead to somebody’s departure. Do these things, and you will not need to use HR services like ours!

You will not always succeed, but don’t worry, the law is on your side. Employers are not expected to tolerate poor performance, but if it does come to a dismissal, they are expected to behave reasonably.

More of this later. First, let’s look at how to encourage performance improvement.

1. Tweet #1/50 pay attention to good performance. There’s a child in all of us that needs praise and thanks.

2. Tweet #2/50 tell the person what you are seeing that you’re not happy with. Avoid assumptions, comment on things you have observed.

3. Tweet #3/50 make sure they understand the impact of the issues that you have with their performance i.e. if they are not recording their activity properly, colleagues cannot deal with customer queries when they are not around.

4. Tweet #4/50 Tell them what you want to see in the place of the problem behaviours. “I’d prefer to see you….”

5. Tweet #5/50 avoid second hand feedback. “Somebody told me…” will not get you anywhere. Tell them what you have observed. I am not happy with this really is OK, it’s your standards that matter.

6. Tweet #6/50 Decide whether the problem is a “can’t” do or “won’t do” and then adjust your approach accordingly. The former may need guidance or empowerment, the latter may need more involvement to deal with disenchantment, or even direction – “you’re tried it your way, so now I want you to do it like this”.

7. Tweet #7/50 Be specific with your feedback. “You are not making enough cold calls” is more helpful than “Your sales figures are not good enough”.

8. Tweet #8/50 Give timely feedback. I was not happy with something you did a month ago” is just not good enough. Whatever you do, don’t save it all up for the annual appraisal – you’ll get appraisal a bad name!

9. Tweet #9/50 Stay assertive: show you understand, state your position and say what you want to happen next. “I understand that you were not clear about what I was looking for. I’d have preferred you to ask me to go through the ideas again, so I’d like to meet tomorrow to have that discussion so that you can get this sorted within the next fortnight”.

10. Tweet #10/50 The old chestnut: set SMART objectives, and be ready to break things down into bitesize chunks. “Try this approach for a week, and then we’ll review it” often works.

All of these ideas are regularly explored in our performance management training courses, and we will go on in Part 2 to explore what happens next if a member of your team is not responding to your concerns.

Ken Allison | 19 September 2017 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone based support services to businesses throughout the UK.

This blog is not a substitute for taking legal advice!

The end of compromise agreements!

This blog (originally published in July 2014) is being reposted following our WordPress account being hacked, resulting in the loss of all our blogs prior to June 2017.

July 29th sees the demise of the compromise agreement, but don’t panic, they are simply being renamed ‘settlement agreements’.

Over recent months we’ve had a lot of questions on our helpline or at training events and presentations about this much-heralded change.

It was forecast to be implemented in ‘late summer’, so obviously the Department for Business Innovation & Skills knows something about how long this hot spell is going to last. To my surprise they announced about a week ago, that late summer was going to be 29th July.

A key question on some people’s minds has been whether it has been worth putting off a discussion which may lead to a termination of employment until the changes take place.

The answer to this question has been, that not a lot is changing, so that in many cases it has not been worth waiting. The change does, however, make a difference to the part of the process that most employers find difficult, namely, initiating the conversation.

Up until now, it has been necessary to have a ‘without prejudice’ conversation, and strictly speaking these are only possible where there is an existing dispute between the parties.

Exceptions to this requirement include straightforward dismissals of employees who have not accrued the qualifying service for an unfair dismissal claim (see how to handle these situations) or situations where an employer is making a settlement payment that is sufficiently generous to prevent a Tribunal claim.

If conversations are genuinely without prejudice, then they usually cannot be quoted in Court or at a Tribunal.

As of 29th July, providing there is no improper behaviour (such as a threat to dismiss if you don’t agree) an offer to end an employment relationship on agreed terms will not be quotable in an unfair dismissal claim.

This should mean that it will be possible to have a more straightforward conversation without the ‘war dance’ of ensuring that it is ‘without prejudice’. This, in turn should prevent aggrieved employees resigning and claiming constructive dismissal, which has been the main fear in the past.

‘Things are not working out, so I’d like to discuss a deal with you that would enable you to leave if you wanted to with a settlement payment’ should be become possible.

So, is it really becoming much simpler? I’m afraid the answer is probably no – there are still issues to look out for:-

1. All the other conditions that we associate with compromise agreements remain the same for settlement agreements. Principally, the final agreement has to be in writing, and the employee has to have legal advice from an approved person (usually a lawyer).

So agreements of this nature are not likely to become less costly to implement, which was one of the hopes when the Government first announced these proposals.

2. Discussions will still be quotable (unless they comply with the terms of being ‘without prejudice’) where dismissal has already taken place, or where there is discrimination, automatic dismissal or ‘whistleblowing’ involved.

3. The new Acas Code of Practice on Settlement Agreements suggests that employees should be given at least 10 days to consider an offer. To give less, may constitute ‘improper behaviour’.

4. The ACAS code recommends (although it does not require) that companions should be allowed to attend pre-termination negotiations.

We will have to see how all this works out in practice, and in order to avoid being an early case in front of a Tribunal, many employers will probably prefer to stick with trying to ensure that a conversation is properly ‘without prejudice’.

There is currently very little case law about ‘without prejudice’ discussions in straightforward terminations which are genuinely to do with poor performance, conduct, attendance, or issues such as relationship breakdowns.

This suggests that initiating conversations are not as difficult as is imagined. It is therefore likely that the main impact of this change will be in changing employer confidence, and so issues may be tackled more directly rather than being avoided.

Together with other 29th July changes such as the introduction of Tribunal fees (subject to the judicial reviews being sort by Unison and others), and the capping of unfair dismissal awards to the greater of a year’s salary or £78,600, we may see greater confidence to tackle issues, and less Tribunal claims.

We shall see!

Ken Allison | 27 September 2017 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone based support services to businesses throughout the UK.

This blog is not a substitute for taking legal advice!

Eva Carneiro vs Chelsea Football Club and Jose Mourinho – was it worth the hassle?

This blog (originally published in June 2016) is being re-posted following our WordPress account being hacked, resulting in the loss of all our blogs prior to June 2017.

The media circus has moved on from the London South Employment Tribunal, the day after Eva Carneiro (EC) settled her claim against Chelsea Football Club (CFC) and Jose Mourinho (JM) for constructive dismissal, victimisation and discrimination, for a reported £5 million.

Jose Mourinho may now be pondering plans for his new employers, Manchester United, but for those of us watching this case it’s worth thinking about some of the employment issues that emerge from this.

If you’ve been to one of my executive briefings for key decision makers who want to feel confident in handling employment law related people issues, I’ve often referred to this case as it has progressed since last August when EC, the Chelsea first team doctor, attended to a player on the pitch in a game against Swansea FC.

JM became irate that this meant CFC were temporarily down to nine men, and subsequently announces that EC will not be on the bench in future, but rather she’ll be working with the ladies’ team.

So, what was EC’s subsequent case against CFC?

She had an immediate case of constructive dismissal, which is where an employer behaves so unreasonably (e.g. demotes someone) that an employee can regard themselves as having been dismissed by the employer’s action.

A few years ago there was a similarly high profile case when Stella English a winner of BBC The Apprentice made this sort of claim against Lord Sugar, and at the time I explored in my blog this whole concept of constructive dismissal and what employers can do to avoid a claim.

It appears that EC attempted to resolve the situation before resigning, which an employee can do, although normally it will have to be clear that the employee is resigning in response to the event or series of events. Some press coverage mentions a request for a salary increase to £400k to resolve the matter, but this was rejected.

She also claimed discrimination, claiming the Club failed to take action over “regular sexually explicit taunts” at games, often failed to provide female changing facilities, and “sexually explicit comments from her colleagues”.

Most significantly, her discrimination claim centred on a Portuguese phrase used in JM’s tirade which she says refereed to her as the ‘daughter of a whore”. Was it ‘filho” or “filha”, is the argument, and I don’t see why technical experts could not simply have analysed the video footage above to clear this matter up!

Some coverage suggests there were also health and safety claims, probably to do with the Club’s duty of care towards its players, and victimisation. This latter claim may have been that the reaction in the match against Swansea, or other events were attempts to victimise her because she had made the discrimination claims.

The ‘everyday’ lesson to learn here is that as is so often the case, a single event occurs, which then gives rise to other complaints which ordinarily, rightly or wrongly, an employee would just tolerate.

Again, as is often the case, these claims are about discrimination which opens the door to uncapped compensation, whereas constructive dismissal by itself is capped, with it being very unlikely that compensation would have exceeded £100k.

How common are out of court settlements like this?

Putting aside the reported size of the compensation agreed here, out of court settlement are very common. In fact, the system is designed to encourage them and figures suggest ACAS manages to conciliate 17% of all cases without a Tribunal, and a further 65% of cases are withdrawn before an application to a Tribunal is made.

2013 research (sorry there is nothing more recent!) suggests that median out of court settlements were about £2,500, and these are unlikely to have gone up due to the subsequent capping of unfair dismissal claims at one years’ salary.

In this case there was a preliminary hearing. Again, very common. The judge meets with the parties in private to clarify their cases, and there is always the hope that this meeting results in a settlement. It didn’t!

There were lots of opportunities to settle this matter, and there always are. Chelsea Football Club will have known for some time what Eva Carneiro was going to say in Court (they will have exchanged witness statements), so nobody can argue that they settled after they heard what the other side was saying in the first half day in Tribunal.

These opportunities to settle exist for all employers and employees, and in some instances it is worth an employer waiting until an employee approaches ACAS (they have to do this now) to see if a dispute that they have not been able to resolve themselves can be settled at this stage. Apart from anything else, ACAS can produce a settlement agreement (called a COT3) and there are no costs! You may not even need an adviser like myself!

Has Eva Carneiro really got the reported £5 million?

I think she probably has, but this sort of amount is unusual.

This was a very public affair, which may well have significantly damaged EC’s career, so she will have been looking for what is called ‘whole career loss’. We have seen another large amount involving a medical practitioner.

In 2011 Dr Eva Michalak was awarded £4.5 million for being hounded out of her job at Mid Yorkshire Hospitals NHS Trust. This is the largest ever award in the UK, and statistically, it’s a serious ‘outlier’, so don’t panic, or if you are an employee, rush out and make a claim. They’re very unusual.

Dr Carneiro may well have been earning twice the salary of Dr Michalak. Although she did not suffer the “chronic and disabling” results of the discrimination that Dr Michalak experienced, this incident may well have had a serious impact on her future career, not to mention the consequences on her personal life of being put through the media attention that has ensued.

So what are the more common levels of settlement in these types of cases?

I don’t want these figures to be used as an excuse for discriminating against employees, but I do often get asked by worried employers about the likely costs of a claim being made against them. In the last full year of published figures (2014/15) the maximum award for sex discrimination was circa £550k, but most significantly, the average was £23.5k and the median was £13.5k.

Many discrimination claims are genuine, many are genuine but only emerge because of some other incident such as redundancy or disciplinary action (in EC’s case, constructive dismissal), and many are unfounded but added to a claim to overcome the unfair dismissal cap and to put the employer on the defensive.

Returning to my opening question, was it all worth it?

Well, according to the press, EC looked pretty pleased with her lot when she left her home this morning, but don’t kid yourself that this will have been a walk in the park for her.

You might be critical of her reported efforts to increase her remuneration because of the incident, but from her point of view she has been vindicated for not settling at £1.2 million. She was demoted from her dream job in a field where she had a considerable reputation.

Clearly Chelsea Football Club thought, as I confess I did, that she may well not get £1.2 million from a Tribunal. The sides do sometimes play games with evidence such as not exchanging it by the deadline set by the Tribunal, so perhaps they really did not know what was coming until the first day.

Frankly, that’s not believable, so I’m afraid it looks like another own goal for football in general, and Chelsea FC in particular.

Ken Allison | 27 September 2017 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone based support services to businesses throughout the UK.

This blog is not a substitute for taking legal advice!