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I manage an unproductive subordinate, who has worked for the company for about 8 years. The issue was first raised almost 2 years ago, and has been gradually getting worse. The problem is not the quality of work, but the time it takes to complete the work. I have tried several different methods to try making him more productive.

He gives his health conditions and problems outside of work as reasons for the poor productivity, which just sound like excuses. Before his health conditions were disclosed to me, I found he was unable to focus on his work and instead kept staring at his screen for long durations.

HR are involved due to his health conditions, and have been working with him on a list of reasonable adjustments. However, this has been going on for over 2 years. He says the deadlines being set are for his benefit, but he cannot meet them because of his problems outside of work.

As part of the reasonable adjustments, I feel like I have to walk on eggshells. I can't Skype him when he works from home, and he does not respond to my emails, so I have no idea what he is doing or why his work is taking so long. When I ask when his work would be complete, he says "tomorrow" or "next week", but when that comes around, his response is the same again. I am less productive due to the time I spend managing him, and I even end up taking his work home and completing it at night.

His previous line manager, who is now my boss, had the same problem, and is frustrated with the process. He advises me to avoid doing anything that could put the company at the risk of battling an unfair dismissal case in court. He has been pushing for the list of reasonable adjustments, but now the subordinate says he is angry with the company as he feels he is not being understood. Approaching HR is not particularly useful as they are either out of the office or unavailable for meetings.

I would now simply like to fire him, but I want to avoid being accused of unfairly dismissing my subordinate. This is my first time managing such a situation. What can I do to improve the situation that won't get me in trouble for firing him?

  • You should definitely start by talking to your manager, HR, and possibly the company lawyers about this. If you are serious about firing this person, it will need to be a group effort to make sure it's done right. – David K Aug 7 '17 at 17:31
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    Do you have any actual evidence that his health conditions are "just an excuse", by which I mean either not real or not as serious as claimed? – DJClayworth Aug 7 '17 at 17:32
  • I've spoke to my boss who said HR are failing the company and my boss has spoke with my grand boss who my boss says is aware of the situation but none of this appears to change anything. – Professor of programming Aug 7 '17 at 17:33
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    Someone needs to get HR off their butt. If they need accommodations, then have them transferred to a role that can accommodate them. – Wesley Long Aug 7 '17 at 17:34
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    Location could be useful - are you in the US where the employee is using FMLA? What are the legal requirements for accommodation at your locale? – thursdaysgeek Aug 7 '17 at 17:35
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The first thing you need to do is establish if there are any adjustments which can be made which aren't. Then make sure they are happening, then forget about any performance issues, experience, etc. from before those were in place. If HR are unresponsive then escalate to their managers.

The second thing you need to do is ensure your expectations are documented - things which. Not what your star performer does, but what some other person who gets the job done but fails to impress manages to produce.

Thirdly, you need to look at those expectations again in light and see if there are reasonable adjustments you need applying (e.g. do you really need short response times - or do you actually need regular updates?). Identify which are being met and which are not. Hopefully you should be having regular performance reviews so this should already exist once you have had an assessment period in which all reasonable adjustments have been made.

Fourthly, you need to find a manager to run a capability procedure (Other answers mention PIP but capability is the magic word to tell HR and to look for in your company policies). This gives them the chance to improve... and a clear process for what happens if they do not. Make sure they have every opportunity to be represented by a colleague or union representative (your choice) and request further adjustments as part of this process. You have already indicated you want this employee gone and that this is your goal. You cannot therefore run a fair process.

In the mean time, as DJClayworth says, be respectful and accept the fact that your team's productivity is lower than you would like - don't get caught up in the 'why' - you may never know, or need to know, the full story.

  • This is the process we plan on following, my boss is going to act as the mediator from this point and HR are yet again away and HR answer to the director who is really hard to reach out to due to other commitments. – Professor of programming Aug 8 '17 at 11:06
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    Please make very, very sure you are completely aware of all the implications of everything you do, especially legal ones, before undertaking anything like this without input from HR. There are very serious downsides for the company if you get this wrong. – DJClayworth Aug 8 '17 at 12:32
  • HR have advised that adjustments should be made and time given to see if the adjustments help. Documentation has already started and is being provided to HR. The situation will be reviewed in the time agreed with the HR department and if the situation isn't any better legal advice will be sought. My boss is overseeing the situation to ensure a fair process is followed. – Professor of programming Aug 8 '17 at 13:19
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+50

I sympathize with you. Situations like this can be extremely frustrating. However they are also fraught with dangerous possibilities. A rash move really can open your company up to a very expensive lawsuit and some very negative publicity. Not just attempted firing, but even rash statements can be problematic in cases like this. I hope that there is no chance that your subordinate can identify himself through this post. If he can, then you are laying yourself open to the claim "my boss posted online that my health problems were not real".

What steps should I be taking to ensure that if my subordinate is fired there are no repercussions?

You should be able to ask HR that question. But from my point of view the main one is to always treat this person politely and with respect, never to make rash or angry statements. Consider the possibility that this may be an extremely difficult situation for them too. Things that are likely to have repercussions if you do them include: firing the subordinate; threatening to fire the subordinate; accusing the subordinate of faking an illness; being confrontational or aggressive.

My main piece of advice is to not focus on making this guy productive, or focus on getting him fired, but instead adjust to the reality of the level of productivity he is able to achieve, and plan around it. Accept that any task you give him is going to take a long time, and plan for it. Don't give him any task that is critical to the job you are working on; plan for him to take much longer than other people would take; and ideally make all tasks ones where, if he doesn't deliver in the timeframe you expect, someone else can do the work after that without a catastrophic impact on the project. Documenting interactions will also be helpful, but be careful of doing this without consulting HR. Your notes could be part of a court case if there is one.

At the same time, make sure your boss realizes that your team is working at reduced capacity (it sounds like they do, but make sure) and that you are given more resources, or your team's workload is reduced, to compensate.

You do need to continue to be cooperative with HR. And with any luck they may be able to reach an actual set of accommodations where the guy can be (somewhat) productive, or a state may be reached where he can be let go without repercussions to the company. But in the meantime, it's not your job to make this guy as productive as everyone else. You just need to work with what you've got.

  • In certain situations what you're suggesting could be deemed constructive dismissal - it's very close to managing the individual out. It's sometimes easier to go through a formal process, identify the issues, accommodate them, make concessions, and then if there is still no improvement start firing the individual (all very well documented of course). – Ben Aug 8 '17 at 8:32
  • I can't ask HR what to do if HR are not available, I know this is what I should do but they are partly responsible for why this has dragged on for so long. – Professor of programming Aug 8 '17 at 11:08
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    The HR team has a boss too. I would have escalated this to him quite some time ago. As a manager, it is unacceptable for HR to avoid meeting with you. – HLGEM Aug 8 '17 at 20:48
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This is a first for me so what steps should I be taking to ensure that if my subordinate is fired there are no repercussions?

If you think your subordinate is using his health condition as a bogus excuse, this is a classic case where you build a paper trail to being the process.

This process should include a well documented performance improvement plan ( PIP ) that includes measurable objectives for the employee to hit. Don't be shocked if the employee actually steps up once on a PIP, and if they don't this should afford you ( legally ) some reasonable protection.

That being said, this does not protect the company from a lawsuit. An effective paper trail ( evidence ) is what protects you from a bogus lawsuit.

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    +1 for a PIP, just googled it and it is definitely a step worth pursuing – Professor of programming Aug 7 '17 at 18:21
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    @professorofprogramming웃 You'll need to get HR involved for a PIP and if your company doesn't already have PIP in their toolkit, making this employee your guinea pig, you make it look like you just cooked it up to get rid of this employee. Also, a PIP is widely regarded as a tool for the company to justify an inevitable termination and cover their asses from wrongful termination lawsuits. – DLS3141 Aug 7 '17 at 18:50
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    If the OP has the authority to terminate employment without getting HR involved, then he should go for it. My guess is that he doesn't and, in any case, going rogue by creating his own version of a PIP which he then uses in an attempt to justify terminating an employee will be seen as harassment that's exposing the company to a lawsuit, especially if the policy regarding PIPs doesn't exist in the OP's workplace. What is clear is that the OP doesn't know the entire situation and it's just his perception that this employee's issues are "excuses". – DLS3141 Aug 7 '17 at 19:07
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    @professorofprogramming웃 The reason you haven't encountered PIP before is that it's an American thing. Don't assume you can apply it in the UK. And don't implement anything like it without talking to HR. – DJClayworth Aug 8 '17 at 3:32
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    @DJClayworth Yes, I know that. Here in the US, PIP's are the last red flag warning the employee to get their job search underway because the axe is going to fall, but even here, a manager is ill-advised to start one without HR's involvement, because any misstep in following the procedure presents an opportunity for a wrongful termination lawsuit. And of course HR and the company's management are not going to look favorably on an employee "going rogue" in order to get their subordinate fired. The OP might very well find themselves out of a job in that case. – DLS3141 Aug 8 '17 at 4:43
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From your own user handle, I assume that this subordinate works as a software developer.

I feel like I have to walk on eggshells, as part of the reasonable adjustments put in place already I can't Skype my subordinate when he works from home, I have to e-mail him, but he then ignores his e-mails. So I have no idea what he is doing or why his work is taking so long.

Having sat with him before his health conditions were disclosed to me, I found he was not able to focus on what he was doing and that he often sat staring at his screen for long durations of time doing nothing.

A software developer, who is not able to focus on his work and who stares at his screen all day, doesn't need less structure, he needs MORE structure (At least, according to my lay opinion).

In other words, I believe he needs shorter feedback loops, and things like daily stand-ups, less social isolation, more face-to-face meetings, more pair programming opportunities, code reviews (not just his code review, everyone's code), screen-sharing turned on automatically when he's working remotely (like oDesk/Upworkd did/does for its work diaries. See pdf.), etc.

Now, I am not a lawyer, nor do I work in HR either. So take everything I say with a grain of salt. And nor do I know what that health condition is (and for privacy reasons, I'm not going to pry).

But in my opinion:

  1. When a company is "required to make reasonable accommodations", it doesn't mean that the employee unilaterally gets to decide what those accommodations are going to be. After all, the employee himself, while being an expert on his own health condition, may also be the totally wrong person to make that kind of decision for himself.

  2. Everything I've said about needing more structure could be wrong, but I wouldn't necessarily trust the opinion of an HR professional either, and I would want the company to seek the input of a 3rd party health professional specializing in that condition as well.

  3. If a disabled employee can't work reliably on a full-time schedule, then one accommodation may be to make that employee a part-time employee instead of a full-time one and perhaps use the extra money saved to hire someone else part-time as well (after consulting with a health professional and legal counsel obviously!!).

  4. If the accommodations go beyond being "reasonable", then it may make sense to seek legal counsel and fire that employee if he doesn't improve (again, diligently following the advice given by your legal counsel!).

  5. Placing the entire burden on you to both oversee his work, and the extra work that requires, and make up for his share of the work is also unfair to you. If you do this extra work at home and bear that cost yourself, that may make the consequences of the problem invisible to your employer (and to your HR person as well). This is a burden for the entire company to bear, not just you. Even if you can't get the particular resolution you're hoping for, you still need to advocate for your own needs so you don't burn yourself out. Either that or you may want to consider looking for better employment elsewhere.

  • His health condition prevents more structure from being put in place. – Professor of programming Aug 8 '17 at 11:02
  • Is this coming from HR? or from a mental health professional? – Stephan Branczyk Aug 8 '17 at 12:46
  • The subordinate has asked for this on the basis of a broadly worded recommendation the health profressional although the request itself is contradictory to the purpose of the recommendation. The company is taking the stance that we have to do anything requested because of the law. – Professor of programming Aug 8 '17 at 13:16
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    This answer would be better if you had some links to supporting professional documentation. Right now it reads as your opinion and belief you are right. – IDrinkandIKnowThings Aug 10 '17 at 17:07
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    @Knetic, The screen sharing doesn't have to happen every second, it can be set at intervals. Nor does the manager even need to monitor it, for its effect to be felt on the worker himself. See PDF: mba.danielwatrous.com/wp-content/uploads/2013/08/… Also, I agree with you about different working styles, I'm not sure my recommendation will work either, but the one thing I can tell you is that in this particular case, the approach of letting the employee be left on his own seems to have been tried already. So if something doesn't work, you try something different. – Stephan Branczyk Aug 23 '17 at 0:10
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This is a first for me so what steps should I be taking to ensure that if my subordinate is fired there are no repercussions?

This question can only be answered by the appropriate departments within your company, Legal, HR, etc.

In the interim, you only practical option may be to assign tasks that are not on any critical path and have very flexible delivery dates. The 'nice to have' features that can be shipped whenever they're done.

4

My answer is significantly shorter than most answers here: It is the function of the HR department to perform this process in a way that there will be no repercussions against the company (and as such, you). If you have the feeling that you already said something which may be interpreted as a discriminatory action, tell this to HR (in the "i have the feeling, that he interpreted this differently from what i meant" way), and ask HR if you should switch this person to another manager.If HR decides to let him with you, it is their responsibility - ask them for advice and let HR guide the process and follow theirs course of action

When i am confronted with such a situation, I only discuss the very specific problems which I had in a specific situation with that person, and ask him/her for the a small improvement (for example informing co-workers/me when there is a problem/delay). If he/she does this reliably at some point, the next thing can be fixed - or not, if he/she does not.

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I would start with a written warning that they have not been performing up to the expectations of the position they currently hold. I would inform them that they have an obligation to the company, you as the manager, and the team, to promptly advise if any tasks will not be completed on time, and the reasons why. As a result you will be reassigning their tasks, and closely monitoring their progress. Further failures to meet expectations regarding the tasks they are performing may result in disciplinary action up to and including termination.

Due to the lack of progress and updates either the employee will no longer be allowed to work from home, or if allowed to continue, they must advise you in writing when they start and end their workday and must check in hourly with what task they are working on and what they have accomplished. They may need the work from home accommodation, but that does not excuse them from not checking in. Also if they are going to be away from their computer and not available to communicate they must inform you before they become unavailable, and when they return to an available status. And this unavailable time will be considered unpaid time if it exceeds the standard allowable break periods. Failure to adhere to this policy will be considered a violation of their work from home conditions and will result in disciplinary action that at a minimum will include the removal of the privilege to work remotely, and may result in additional disciplinary action up to and including termination.

Take that warning to HR and get their sign off on the warning, and make any adjustments they require. Then call the employee into a meeting and present them with the warning and get them to sign off that they understand their current working requirements.

Give them smaller tasks that they will be able to accomplish despite any limitations they have. If they are legitimately having issues then they should be able to accomplish these tasks. If they still fail to accomplish the tasks as directed then you have reason to take action against them as their manager.

For me this will likely mean they are not working on the most exciting and fun projects but rather working on smaller maintenance type work and tasks that are small and easy to do just tedious.

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