How do you deal with your own #KPgenius?

The current saga regarding Kevin Pietersen’s dropping from the England cricket team has created a lot of headlines with Pietersen being accused of being a disruptive force in the dressing room, making unreasonable demands as to his playing commitments, and of sending disparaging text messages to members of the opposing South African team about his captain Andrew Strauss. Pietersen himself has accused teammates of colluding with the originator of a parody twitter account of himself called #KPgenius.

The ECB has taken the brave step of dropping Pietersen for the final test against South Africa despite him scoring a match-saving 149 in the previous test. The situation that the England management have found themselves in mirrors the problem that many employers face when their star employee is difficult to manage but also brings in significant income or benefits to the business. What can be done to deal with such an employee?

It is the case that most businesses need different people with different skillsets for the business to function properly. I have worked at firms where different partners did not get on but they appreciated the need to rub along for the greater good of the firm. If all employees are the same then not only would they have the same strengths, they would also have the same weaknesses and a “clone” workforce is not necessarily beneficial. It is therefore often advisable for a business to give some latitude to the difficult star employee as to do so will benefit the business as a whole. This can mean that the employer has to perform a balancing act to ensure that the employee’s behaviour is not bullying or discriminatory as if this behaviour is allowed to continue then the employer could find themselves open to claims of constructive dismissal or discrimination from other employees in the business who have had enough.

Like the England dressing room, it is preferable for internal disputes to stay within the business with a united front being presented to both customers and competitors alike. Open signs of disunity within a business can be seen as unprofessional and also a sign of weakness. This means that when an employee, however talented, starts openly badmouthing their employers to competitors and/or customers it is normally the case that they will have to be disciplined.

So what action can be taken against an employee who is badmouthing their colleagues and employer? A lot depends on the nature of the remarks and the context within which they were made. The employer would have to consider whether the employee could carry on working for the business after making the remarks and also whether they can continue working with their colleagues and managers. Ultimately, if the comments were sufficiently derogatory and damaging, the employee could be seen as having breached the implied term of trust and confidence between employer and employee and could be dismissed for gross misconduct.

Pietersen made the remarks by text message. I have no idea how it was discovered that he had made the remarks by text no-one really seems to know what they said. It would be difficult for employers to check an employee’s texts particularly if they were made on a private phone or they had subsequently been deleted by both the sender and the recipient. Employers can potentially check employees work emails for such comments; however, there are privacy issues and employees should be informed that their emails may be monitored (usually in their contract of employment or staff handbook). Checking an employee’s emails is not a step that should be taken without careful consideration and where necessary legal advice should be taken.  Comments made on social media sites such as Facebook and Twitter may also be used as evidence of trust and confidence being broken.

It can be very difficult for a business to sack their star employee. If they are a salesperson there is the risk that they may take clients with them; alternatively, they may have a set of skills that are hard to replace. It is a big step in such circumstances and businesses have to ensure that they are bigger than one individual. Hopefully the performance of England on day one of the test shows that such a step can be taken and others will flourish (I may have to amend this last paragraph if it all goes wrong in the next four days!).   

How Employers can avoid becoming sick of holiday rights

We are now well and truly into the holiday season. Workplaces up and down the country are emptier than usual, “out of office” becomes regular reply to your emails, and voicemails inform you that the person that you are trying to call will not be back for another two weeks.

Ever since the introduction of the Working Time Regulations in 1998 the issue of annual leave has become an increasingly difficult one for employers to deal with. Case law from both the EU and the UK has developed in relation to this issue particularly in relation to sick leave and annual leave and the following principles have been established:-

a)      Employees who are off sick can roll over their holiday entitlement into the next leave year.

b)      Employees can choose to take their holiday entitlement while they are on sick leave.

c)       Employees who become ill while on holiday can re-take their annual leave at another time.

d)      An employee who is off sick for the whole of an annual leave year does not have to specifically request that their annual leave entitlement is rolled over to the next leave year.

As well as the legal headaches that employers encounter there are also the practical problems. How do they ensure that the business is still able to operate properly while their employees are on leave? What is the fairest leave request system to have in place? What systems need to be in place to deal with the issues relating to sickness and holiday leave?

Despite bodies such as the CBI and Institute of Directors complaining about the difficulties that employers face when dealing with the issue of annual leave it is unlikely that anything is going to be done soon by the government to change this position due to the fact that the law relating to annual leave stems from either EU legislation or European case law. Employers therefore have to consider what they can do to try and minimise the effects of these cases. Here are a few suggestions on how to minimise these effects:-

1)      Have a clear Holiday Policy and Procedure – A clear holiday policy should state how much time off can be taken at one time. It should also state when requests should be made by and how they will be dealt with. The policy should also make it clear if there are any shutdown periods (e.g. Christmas) when leave should be taken.

2)      Plan for Holiday Absences – There are likely to be times of year such as during the school holidays when employees are more likely to want to take time off. Employers should consider what their business needs are and plan accordingly, for example; by setting limits on how many employees within a team or the business as a whole can take time off at any one time.

3)     Consider how to deal with multiple requests for time off during popular periods such as Christmas - Should it be on a “first come first served basis” or should there be some form of ballot? This does have to be  considered carefully, I remember when a firm that I worked at said that requests for time off at Christmas would be dealt with on a first come, first served basis and this resulted in a queue of employees outside the HR office on 2 January ready to hand in the leave requests for Christmas of that year almost 12 months in advance!

4)      Have a clear sickness/capability procedure – As stated above, employees who are off sick do continue to have rights in respect of annual leave. Dealing with sickness absence in a properly can prevent employees unnecessarily accruing holiday entitlement. It is also the case now that in light of recent case law employers should also consider what procedures they should have in place for employees who became ill while on holiday and who may want to retake their leave at a later time.

5)     If in doubt speak to a solicitor – Well I would say that wouldn’t I! The reality is that the earlier that you seek advice about any potential problems the more likely it is that you will avoid costly litigation in the future saving a lot of money in the long run. (We also have  a special offer to either update or draft yourholiday procedure for £75 plus VAT for details of this click here)

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