The question
Within the business, we have an employee and a line manager whose working relationship has completely broken down. The line manager has been with us for 20 years and has an unblemished record. The employee has been in post for three months, but has had no previous employment issues and her references were excellent.
The line manager is very particular about how tasks are undertaken. They want to dictate letters/documents to the employee and are constantly returning her work to her circled in red.
The employee sees this activity as micro-managing, taking her initiative away and not trusting her to do a good job. She also had a probation meeting at which no performance issues were highlighted. This feedback only came to light after the meeting.
At this point, the employee went off sick with stress. We have mediated between them both and tried to get them to come to a solution in order to enable them to work together again. But both parties are saying that their working relationship is having a detrimental impact on their mutual health (stress) and are refusing to do so.
I am now unsure what action to take to resolve this situation? As the employee has less than two years’ service, we could dismiss her, but is this the best way to handle things? Any advice would be gratefully received.
The legal verdict
Esther Smith, partner at Thomas Eggar
This is a situation that arises all too often, I am afraid. It sounds as if there is no culpable behaviour on the part of either individual to merit any disciplinary action so, for the sake of the business, it would appear that one of them has to go.
This means that you need to decide for yourselves which one, in an ideal world, you would want to keep.
If the new employee is to go, she is easy to deal with as she does not appear to have statutory protection against unfair dismissal. If your preference is that the longer-serving employee should go, clearly you do not have fair grounds in law to dismiss her and so your options are quite limited.
You could compromise her out, but that involves spending money and, in reality, you may be better off leaving the new employee in post and waiting for them to resolve the issue themselves. They will do this either by learning to get along or one of them will leave of their own volition (or be signed off sick for a long period).
Given that you have tried to resolve the issue and neither of them is doing anything 'wrong' in a disciplinary sense that has not been addressed, I don’t see that you are particularly at risk of a claim of constructive dismissal should you leave them to continue working together.
Esther Smith is a partner in Thomas Eggar's Employment Law Unit.
The legal verdict
Martin Brewer, a partner for Mills & Reeve
The very first thing that you have to do is decide if the relationship can be repaired. If it can't, the second thing to do is to decide is whether you want to keep both employees, one or neither of them.
If you want to keep them both, you will presumably have to redeploy one of them, probably the one with the least amount of service. But you could ask both of them about this option.
If you cannot redeploy or if you want to dismiss one of them, for example, simply to keep the peace, it is obviously simpler to get rid of the short-serving employee as you have rightly pointed out.
If you would prefer to dismiss the manager, you will need to follow a process. This would probably best be done by a short investigation into 'working relationships', which would conclude that either the manager is culpable or both employees are to blame (depending on exactly how you want to take this forward).
Hold a hearing giving the employee(s) the chance to have their say and then take a decision to dismiss, with notice or pay in lieu. Allow the right to appeal.
Such a dismissal would likely take place for 'some other substantial reason' unless there is real culpability, in which case it could be a case of misconduct (if so, you must follow a disciplinary procedure).
Martin Brewer is a partner at law firm, Mills & Reeve LLP.
This article was originally published on HRzone.co.uk.