What do you do when employee coaching isn’t enough? Chronic underperformers and employees who don’t recognize workplace boundaries and management authority can try the patience of even the best manager-coaches. As their own worst enemy, they often leave well intentioned and trained supervisors with no choice but to consider disciplinary actions.

In these instances, Dr. Lee Innocenti of Performance Strategies Ltd., says that progressive discipline is often the next best step. But she advocates strategies that produce a positive change, reduce the risk of costly employee litigation and unnecessary employee turnover.

Innocenti describes progressive discipline as a “series of steps, each with progressively greater consequences, intended to change undesirable employee behavior.”

These behaviors include:

• unexcused absences;
• regularly reporting late to work, taking extended breaks or leaving early without prior approval;
• failing to perform as expected;
• violations of rules or policies;
• inappropriate behavior that reflects poorly on the company and the individual.

Principles of Progressive Discipline

According to Innocenti, the foundation of progressive discipline involved five key principles:

1. It must be corrective. It must be designed to fix, not to punish.

2. It must be fair. The process must fit the size and severity of the infraction.

3. It must be consistent. All managers must be singing from the same “songbook.”

4. It must be progressive. Consequences must increase with each step.

5. It must reflect due process. It must protect the company and the employees.

She says there’s no substitute for “best practices” when initiating progressive discipline policies. Among the best practices that need to be included are having an up-to-date written policy that is consistently applied throughout the organization.

It also includes signed and dated documentation by the manager and employee for each formal step. Managers must also “get the facts,” while never beginning on the basis of rumor or speculation.

Most importantly, Innocenti says, “Progressive discipline needs to reflect a ‘positive approach’ in that managers treat each instance as an opportunity to correct the situation vs. applying punishment at the outset.”

What’s the Law?

While there are no laws that require employers to use progressive discipline, according to Innocenti, legal action against an employer is more often ruled in the employee’s favor because of one of the following three pitfalls:

1. By virtue of not having a progressive discipline policy, employer could not defend their actions or demonstrate any consistency.

2. Policy exists but is inconsistently applied.

3. The employer uses progressive discipline as a termination “set-up” in retaliation for something (wrongful termination) or to force the employee to resign (constructive discharge).

The Steps of Progressive Discipline

The first step in implementing progressive discipline is the most critical and can involve either a verbal warning or early intervention.

According Innocenti, when a verbal warning is the initial step, it must also include an explanation of the repercussions of the employee’s failure to change his or her conduct or performance, which is documented and placed in the employee’s file.

When early intervention is the chosen approach, initial discussions are documented for future reference, but not for the employee’s file. With this approach, a helpful coaching tone is used to put the employee at ease. Then the employee and manager are involved in creating a solution.

Early intervention is the best approach vs. verbal warning when an individual’s behavior is a departure from his or her normal behavior or when the employee is new and doesn’t fully understand expectations of the job. It’s also applicable when an employee is highly skilled and valuable, but has annoying habits.

Regardless of your choice of verbal warning or early intervention, Innocenti emphasizes that the manager must be consistent. When determining which approach is best, she suggests that the employer first ask, “Would I take this same approach with every employee in the same situation?”

Beyond Step 1

Innocenti believes that if the manager gets the first step right, “it will almost always be your first and last step.”

She also suggests that the employer try to use the early intervention approach when ever possible, but in any case, be specific about not only the infraction but of the progressive steps that will be taken. Investigate the situation and get the facts, and stick to the facts — never take action based on rumor or speculation.

But when additional actions are required, she says as many as three written warnings are warranted. At the same time, measure the employee’s progress toward correcting the behavior or performance issues.

When all else fails, the employer needs to issue a “final warning” that is in fact final. “Be prepared to stick to it,” Innocenti says. “Attorneys representing employees love to see multiple final warnings. The more there are, the less they mean. The only appropriate next step if the employee doesn’t improve is termination. There’s no going back.”

This may include suspension with or without pay pending investigation and final determination.

The last resort, of course, is termination. “When it reaches this point, it’s only a failure on your part if the employee is surprised,” say Innocenti.

She adds, that termination is the starting point for most employee litigation. Therefore, facts, records and history are critical.

“At this point, treating the employee with respect helps prevent legal action and builds trust in management from those remaining,” Innocenti says.

Success with Progressive Discipline

Above all else, when workplace situations call for the use of progressive discipline, Innocenti insists that it needs to be used “as a tool vs. a weapon.”

“Misusing progressive discipline to torture someone until they’re forced to quit (also called constructive discharge) or must be terminated because the progressive discipline requirements are impossible (wrongful dismissal) is a common but serious mistake for a lot of reasons,” she says.

These include:

• It sets the company up for a wrongful or constructive discharge claim.
• It impairs the trust of all employees, not just that of the affected employees.

Above all else, says Innocenti, in every disciplinary case, “Stick to the facts and don’t editorialize or give credence to rumors. Always explain to the employee what comes next. Be respectful and calm, and don’t act in the heat of the moment.

“There are only two success measurements of progressive discipline. Either the employee improves and the record is wiped clean or the employee is terminated, but isn’t at all surprised.” FE

Performance Strategies Ltd.  provides human resource consulting services to help organizations implement their business strategies.  Their services include training, organizational development, executive development and operations support. For more information, please go to www.performance-strategies.com.