One of the biggest employment law myths that exist among SMEs (small and medium-sized enterprises) relates to firing staff. Many business owners believe it is almost impossible to sack a member of staff, or that they have to follow a particular process and, as long as they do so, the business is safe from claims.
The truth is quite different and, although the law is complicated, it should not be difficult to get the basics right.
To dismiss fairly you need a combination of one of the five potentially fair statutory reasons, plus a procedure that is fair and reasonable.
The five potentially fair reasons to dismiss an employee are: conduct or behaviour, capability (including the inability to perform competently), redundancy, breach of a statutory restriction (such as employing someone illegally) or some other substantial reason (such as a restructure that is not a redundancy).
If the business does not have one of these reasons, then the dismissal will be unfair, even if a fair procedure is adopted. Once a business has established one of these reasons it must act reasonably, and be seen to do so, before dismissing.
This means that it has to do such things as investigate properly, consider alternative penalties, act consistently (by reference to how it has dealt with similar incidents) and generally act reasonably and fairly. This is where a procedure comes in.
Generally, a business will be expected to investigate before holding a disciplinary hearing. This will usually involve giving the employee any evidence gathered and time to prepare for the hearing.
At the hearing, the employee should be given the opportunity to put their side of the story and to challenge the evidence. Employees should also be allowed to be accompanied by a colleague or trade-union representative, who can ask questions but cannot answer them on their behalf.
Any penalty should reflect the seriousness of the act. Employees must not be sacked for a first offence unless their behaviour is so serious that it amounts to gross misconduct, which can include things like fighting, stealing, swearing at customers, etc, as well as behaviour that could damage the reputation of the business.
If the issue relates to an employee’s performance, they should be given time to improve and warned before being dismissed. They must be given an opportunity to appeal against dismissal too, and most employers also allow staff to appeal against written and final warnings.
The fear of dismissing a staff is often associated with worries about being hauled before an Employment Tribunal and accused of unfair dismissal. These are often unfounded. For a start, employees with less than two years’ service do not have unfair dismissal rights, apart from exceptions generally around equality and discrimination.
If businesses have a fair reason, reach a reasonable decision and follow a fair procedure, they can confidently dismiss.
The way to avoid employment claims is to act fairly and reasonably at all times, not just slavishly follow a procedure.
If you have a problem with an employee, you have not one but two choices: try to coach them and work with them to improve their performance, or fire them. Firing an employee can be costly and cause your employee a great deal of emotional and financial difficulties—especially in the modern economy. Done in the wrong way, firing someone can also open you or your organization up to liability and lawsuits. Unfortunately, however, there are situations where terminating an employee is your only option. This article will show you how to fire somebody gracefully and safely.
Before the Termination;
Set Expectations. Discuss with your employees any behavior that could be grounds for immediate termination. Don't wait until behavior is already occurring. Be sure that all employees understand the rules and productivity expectations in advance. These might include such things as failing to disclose arrest records, lying about past employment, failing a drug test, insubordination, excessive absence—and what constitutes “excessive”—and other issues that affect job performance.
Regular performance appraisals. Evaluate employee work at least once a year and document deficiencies in performance versus your expectations or the actual job requirements. When an employee comes up short, discuss ways to improve and give the employee clear steps and goals to help them improve.
Be sure of your standing. Unless you are the company owner, know your employer's rules about firing someone. There may be specific steps you are required to take to fire someone -- even if the employee is not doing their job. Never undermine your employer and risk your own position by taking such actions without informing your own supervisor.
Act quickly when problems are noticed. Be sure to communicate performance problems as soon as you are aware of them, and coach your employee on how to improve. Sit down with your employee and discuss with them the problem. Ask them what they think is causing their performance to be substandard, and and offer suggestions for their improvement. Keep a written record of these conversations. Either have them sign a form that covers what was discussed, or send them a formal email, or both. If sending an email, ask your employee to reply to it when they’ve read it, both to acknowledge receipt and to give them an opportunity to respond in writing.
Consider personal factors. While companies have to keep an eye on their productivity, workplace environment and bottom line, it's wise to ask about and consider any extraneous circumstances in your employee's life that may temporarily be effecting their performance. Health problems, death in the family, divorce or other relationship trauma, moving stress, and financial troubles are all part of life and can understandably cause otherwise valuable employees to lose focus. However these drops in productivity can be temporary, and firing someone in the midst of outside difficulties can be cruel and potentially bring bad publicity to your organization. If possible, consider giving the employee some consideration and an opportunity to resolve their difficulties so their performance can improve.
Focus on the problem. When you counsel an employee, focus on the facts, without editorial comment. "You have failed to meet deadlines on 11 out of the past 16 assignments" is appropriate. "You're slacking off" is not appropriate.
Keep records. Should the need arise, you want to have a paper trail that shows you were neither capricious nor arbitrary in your decision to fire. Retain a record of all disciplinary actions. Have the employee sign some sort of document outlining the conversation to cover yourself and the company. It should specifically state that the employee is not admitting fault, but has been told that job performance is not satisfactory. Outline specific improvements or changes required in order for them to keep their job, and give them clear deadlines when these improvements or changes must be seen.Set milestones. Don’t expect all problems to be solved immediately. By giving a timeline and some key goals attached to deadlines will help highlight any improvement (or lack thereof).
Be clear with an employee when the next stage is termination. If the employee continues to underperform, be sure they understand that improvements must match benchmarks or the employee will be fired.
Warnings:
Keep in mind that dismissing an employee is not necessarily a bad thing for the employee, in the long run. It's distressing, of course, and it can create temporary hardships. On the other hand, if the person isn't suited for the job, it's better to free them to do a job that they can do well. Sometimes dragging along in a job that's a bad fit is more stress to that person than you can realize.
Document the course of events to prove you had at least one conversation with this person and have given them at least one opportunity to correct the problem before firing. This is the absolute minimum you are required to do, but most employers go by a "three strikes" rule unless the offense is serious in nature.
Be clear about all duties and responsibilities when an employee is hired. Provide a complete job description that employee signs off on to show they understood the work they are taking on.
The human resources department (if your company has one) is always a good resource. You may even want (or need) to have an HR staff member in the room during the termination.
Ask yourself whether the problem lies entirely with the employee, or whether your management skills—or other workplace factors—have something to do with your employee’s poor performance.
How you handle this termination will define how other employees think of you and their job. If you are unfair or arbitrary, they will think they could be next. If you call security and make the discharged employee surrender keys and march out immediately (if there is no legitimate threat to the business) they will think you're a jerk. Remember other employees may have been friendly with this person.
If you sense there might be trouble, fire an employee with another manager present in a closed environment (an office, or conference room). Doing so will provide you a witness should things go south.
Be careful how you rationalize a dismissal, verbally or in writing. You can easily put yourself and your company in an untenable position by saying the wrong thing.
Expect that the employee you fired may seek revenge on you after the termination. If it is violence or anything resulting in life or death contact the authorities when it happens.
If you do not have adequate documentation such as employee signatures on job descriptions, performance appraisals, etc., your organization may lose any lawsuit filed by disgruntled employees. If you have a troublesome employee that you need to get rid of, begin to document misbehaviors in writing. Put incident reports in their file, do write-ups when violations occur, and have witnesses logged for major incidents. Don't assume that you'll be believed, so be prepared to provide hard evidence.
Some states have "at will" employment laws. In those states, the employer can essentially fire an employee without reason, and on the flip side, employees can quit without notice. In those states, you'll want to be aware of that legal loophole. Also note that even if you can dismiss an employee for no reason that does not mean ‘‘any’’ reason." For instance, most states do not allow even "at will" dismissal if it can be construed as discrimination against a protected class.
You should consult a lawyer or understand employment law in your state to be sure you're complying and treating the employee fairly.
Don't yell or shout at the employee. Other employees may hear you and they could call security or the police on you. Remember that such walls nor doors are not soundproof.
Firing someone can, depending on your state's laws and the situation, leave you or your company open or extremely vulnerable to a potential lawsuit, from a wrongful discharge claim to a discrimination suit.
