Some problem candidates insult colleagues, instigate conflicts, constantly contradict others or know everything better. Others spread rumors or poison the atmosphere with their permanently poor mood: Difficult employees exist at almost every company. Managers tread a fine line if they want to find out the causes and set boundaries. The employer’s right of instruction also permits them to influence the work atmosphere: Employers may regulate the company organization and the employees’ conduct at the company, unless these are already governed by the employment contract. However, tact is essential if the problem arises from character traits or personal circumstances.
- The response must be proportionate
The principle of proportionality applies in labor law. Section 75 (2) of the Works Constitution Act stipulates that employers and the works council are obliged to protect and encourage the employees’ free development of their personality. When it comes to restricting difficult behavior, this means that the reactions must be suitable, necessary and appropriate to protect the employers’ interests. Therefore, managers are required to progressively escalate their response and start with the mildest options. If an employee becomes louder once in a stressful situation, this is generally forgivable. However, employees cross the line when they insult colleagues.
- Agree on measurable results during the performance review
The performance review represents the first step when employees cross the line. This one meeting can simultaneously achieve multiple positive effects: The employee is clearly made aware of where the boundaries lie. At the same time, this response also sends a message to the entire organization: Although the company has refrained from immediately taking legal action, misconduct is not tolerated. Standards such as respect, cooperation and communication with each other instead of about each other are not only expected, but also lived by example.
However, this meeting must not devolve into a simple chat. To be effective, measurable results have to be documented in an agreement or meeting report: One example could consist of an ultimatum setting a deadline by which the employee has to have improved their stress-related, choleric behavior. Employees who constantly complain, contradict, or know everything better can be helped if they are repeatedly given to understand that their manager will not accept any excuses if they fail to achieve average performance goals.
- Tact is essential when investigating the causes
Managers face an especially delicate and challenging task when investigating the causes behind difficult behavior. As always, private remains private. Unfortunately, it is easy to cross the boundary between working life and personal life as misconduct is often a personality issue. In contrast, asking about options for providing assistance is permissible. However, this must never appear to be a demand. It is essential to avoid any blame and humiliation. The objective must be to work together to find out: What can be done better? What is the best way to achieve that? It is about assessing the conduct and not the person.
- Threaten escalation: Transfer and warning
Why should an employee change if they have no fear of consequences and monitoring? Simply threatening a transfer or a warning during a discussion is inadequate. Managers also need to follow through. The employee needs to understand that their manager is paying attention to them – in both a positive sense and also in terms of supervision.
- Secure evidence
To enable possible sanctions under labor law in the event of escalation, managers need to secure evidence. This can consist of the minutes of performance reviews, for example. In addition, documenting witness statements or mail correspondence can be a useful approach when a persistent complainer instead begins with “work-to-rule” after the performance review.
- Conduct-related termination remains the exception
Dismissal for conduct is the final step if, for example, an employee persistently refuses to perform tasks which they are obligated to carry out due to their employment contract (ruling of the Federal Labor Court dated April 5, 2001, Ref: 2 AZR 580/99). Or if they instigate a bloody brawl (Federal Labor Court ruling dated September 18, 2008, Ref: 2 AZR 1039/06). Dismissal for conduct has strict prerequisites and even within these narrowly defined exceptional circumstances, employers still need to issue a warning.
- Participants in the company
HR always takes the lead alongside the manager when dealing with difficult employees. However, involving the works council as well is often a sensible step.
- Check mediation options
Involving a mediator is another option. They can examine the conflict from the outside and may be able to convince both parties to change their perspective. Key in this case is that it is also important to work toward a mediation agreement between the manager and the employee.
There will always be difficult employees. Managers face particularly difficult challenges with talks and also not only threatening but also following through with consequences. It is a matter of clearly pointing out mistakes while simultaneously treating the person with appreciation, respect and interest in order to find a solution together. If the conflict cannot be resolved through talks alone, managers must observe the requirement of proportionality in labor law and move forward step by step. Termination due to conduct is only permissible in very rare exceptional cases.