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Managing difficult employees: how do you solve a problem like Mario?

Mario Balotelli has joined Liverpool FC after the club agreed a £16 million fee with AC Milan so will be spending the season at Anfield; but only if he behaves.

Described by José Mourinho as unmanageable, Balotelli is a controversial figure, having clashed with most of his managers during his brief career. 

The striker’s new contract allegedly includes clauses that require him to adhere to a strict code of conduct or face disciplinary and financial sanctions. Liverpool have taken a gamble on Balotelli due to his unquestionable talent. But this raises the question: what can employers do when faced with a similar problem employee? 

Personality clashes in the workplace, irreconcilable differences between colleagues, or dealing with an employee’s behavioural issues can create significant problems for any employer.

The tribunals have held that where an employee’s difficult personality substantially disrupts the business, or impacts upon that individual’s behaviour towards colleagues and clients, an employer is entitled to dismiss them.

Any such dismissal is not regarded as being on the grounds of conduct (as you might expect). Instead, it is a dismissal for “some other substantial reason”. This is because the reason for the employee’s termination is not their conduct per se, but rather the fact that the parties simply cannot work with each other. 

Employers need to exercise caution when dealing with difficult individuals. Where an issue arises due to the conflicting opinions or beliefs of employees, and those opinions or beliefs are protected by discrimination legislation (for example, they relate to religion, race, sexual orientation, disability or any other protected characteristic) employers must be careful not to expose themselves to discrimination and/or unfair dismissal claims. 

So, what can employers do to protect themselves? 

1. Investigate apparent personality clashes or disruptive behaviour fully. An employee may be acting out for valid reasons (for example, if they are struggling with stress, personal issues or being bullied). This may affect what action you adopt in the circumstances, how you approach the individuals involved and how you discuss their behaviour with them. 

2. If employees are not getting along, consider inviting them to attend workplace mediation, either with a member of your own HR team or an external HR consultant. This will enable the employees to air their issues with a view to finding a constructive way forward. 

3. It may be appropriate to relocate employees. Consider internal or external secondments, or a sideways move. Discuss this openly with the individuals involved, and be careful not to expose yourself to any allegations of favouritism, marginalisation or having demoted someone. If you do so, you will run the risk of the affected employee resigning and claiming constructive unfair dismissal or alleging discrimination. 

4. Consider whether it is appropriate to change an individual’s line management or departmental structure if they are struggling with particular people in their team. 

5. Make sure you have well-drafted anti-bullying and harassment policies in place (if you do not already) and operate a zero tolerance approach. There can often be a fine line between personality clashes and bullying/harassment. It is important to send a clear message to staff. 

6. Include well-drafted disciplinary and grievance policies in your staff handbook. If there isn't a handbook, consider having these policies in place anyway, to afford you and your staff certainty. 

7. Include suitable notice, termination, payment in lieu of notice, suspension and garden leave provisions in your employment contracts. This gives you maximum flexibility to terminate an individual’s employment if appropriate. 

8. Also consider including a “good behaviour” clause in your contracts. This will state exactly what may happen in the event of employees acting out or bringing your business into disrepute. 

9. If you genuinely believe that there is no other option available but to dismiss an employee because of their personality or behavioural issues, implement a fair dismissal process and be sure to document your reasons for termination, including how their continued employment is having (and would have) a significant impact on your business, other members of staff, customers, suppliers, workplace morale, goodwill, and so on. 

10. Finally, if you are unsure seek legal advice before taking any action so as to guard against the risk of a disgruntled employee issuing proceedings against you. This risk should not be underestimated.  

Francesca Lopez is an employment lawyer at Kingsley Napley