You are not obliged to create a role for someone to step down into if they want to. If someone cannot or will not do their contracted job, they either resign or are dismissed. Even if you have a more junior vacancy, it is entirely discretionary whether to allow them to step down into it and you are entirely not obliged to do so.

The problem in such cases is when employees refuse to accept this as a reality and therefore won't say "I resign". In such cases your legal options are either to manage them out through the capability or disciplinary pathways or to reach a settlement agreement for them to take a payment to go.

In reply to Robey:

Hi Robey,

Thank you for the advice, this is really helpful. I agree that a settlement would be the best option. Could I just ask; where you mention the disciplinary route - on what grounds please? We have reasonable belief that the employee is working against her supervisor / creating conflict - would this be the focus in the event of disciplinary action?

Thanks again.

Lisa

In reply to Lisa:

Hi Lisa,

Why would a settlement be the best option? In general, settlements are where there is the potential for a tribunal case or a desperate need for a quick resolution. In this situation, I would have thought the best options, in order of preference are:
1. The employee wishes to step down and the company agree that she's an asset and want to keep her, have a vacancy and can offer it to her.
2. The employee wishes to step down but the company aren't able to accommodate (either because there isn't a vacancy or because she's not an asset), so they let her know this. She decides to either continue in the role because she feels the challenges are temporary, or she makes the decision to resign and go elsewhere for her desired role.
3. The employee wishes to step down but the company aren't able to accommodate, so they let her know this. She doesn't wish to resign but isn't capable or willing to continue the current role. This becomes evident in her conduct so the company manages through their capability or disciplinary policy.

If you have reasonable belief that she is creating conflict with her supervisor and actively working against them, I would suggest an investigation into whether this is a disciplinary matter. That's likely to take time, so I guess I can see there why a settlement may be the best decision - although if the company are willing to invest time and resources, the investigation and disciplinary could be concluded in less than 2 weeks. Unlikely to be gross misconduct but could be a first warning, leading to a second and eventual dismissal within a short space of time if the behaviour is egregious.

Is she having a significantly bad impact on the business operations at this time? So bad that you'd want to pay her to leave rather than manage the behaviour, keeping in mind the image that can give to others (given any settlement would be private so all sorts of rumour mill could start)?

In reply to Sophie:

Hi Sophie,

We arent able to accommodate her request to step down so she will therefore be given the options (limited to resignation). Rather than a formal agreement, it would be suggested if she does take the decision to resign, we would pay 1 month's notice in lieu, as per her contract. In the ecent she decides to stay, then we will look at disciplinary / capability.

In reply to Lisa:

If someone refuses to do their job, which they're capable of doing, but refuses to resign, then the only option is to take disciplinary action.

If someone wants to do their job, but cannot, but refuses to resign, then the only option is to take capability action.

Whether settlement is the right approach is going to depend on what kind of business you are in, but you can move quite quickly to a dismissal if someone simply refuses to do their job. From informal warning to formal hearing can theoretically take no more than a couple of weeks if you line your ducks up carefully from the start. It could save you a lot of money compared to a settlement agreement.