Business Law & Compliance
How to fire someone – with no comebacks
5 min read
25 March 2014
You could be forgiven for thinking that even the slightest admonishment to a member of your staff will land you before an employment tribunal, paying compensation for breaching some new employment regulation.
The reality is somewhat different. You can keep your staff in line, without jeopardising the time or the money that goes with getting it wrong.
Get the foundations right
Do staff know what they should and should not do? Can you prove it through written job descriptions, training records, safety rules, records of employees briefings etc? Often when a manager comes to discipline someone, it cannot be proved that the employee was ever shown the correct procedure. Sometimes the manager will press on with the disciplinary because to back down would be to admit that they were wrong to consider disciplining the worker in the first place. If you hear the phrase, “well, it’s obvious that wasn’t the proper way to do it”, the alarm bells should start ringing.
Don’t leave it too late
Do you regularly check that standards are being enforced? When a major problem suddenly erupts, trouble has probably been brewing for some time. It will seriously undermine the company’s case if it turns out that an errant delivery driver regularly drove his van like a dodgem but nothing was ever done about it – he could argue that those standards were effectively accepted by the company.
Follow your own procedures
If you don’t have a disciplinary procedure, your employees will have a field day. If you do, then follow it. If it says that a senior manager will hold the disciplinary hearing, then that’s what you have to do. No matter that one senior manager is in hospital waiting for a bypass, the other two are on holiday; or that even you granny’s cat could see that the other employee has to be sacked.
Failure to follow procedure means you’re automatically in the wrong – after all, your procedure is a commitment to your employees about the way you are going to handle formal discipline. It might be that you would have sacked the employee anyway if you had done things properly, and this may mean that any compensation is reduced considerably. But you could still find yourself at an employment tribunal with all the time and trouble that involves. Keep procedures flexible so that if someone is absent, the process doesn’t grind to a halt.
If you do dismiss – get a settlement agreement
Even when you try hard it is still possible to make mistakes. So it is wise to offer the sacked employee a bit extra to go quietly. It is almost a good idea to get the dismissed member of staff to sign a settlement agreement where, in return for a more generous pay-off, they agree not to take you to an employment tribunal or “sue your pants off” in any other way.
You can also agree other things at this point. Generally there will be an agreed reference (which is always a great negotiating lever for the employer) and the agreement may also contain other things such as confidentiality or a non-compete clause.
A settlement agreement should not mean that you ignore your procedures. Many firms do, and pay out accordingly. If you’ve really mishandled the dismissal, the lawyer advising your employee might tell you to stuff your offer and threaten to go to a tribunal anyway on the grounds that they have more to gain. The better you have handled the dismissal, the stronger your negotiating position. The beauty of this is, once the agreement is signed that is the end of the matter.
If a dismissal is on the cards always use an office near to the exit so that the employee is spared a funereal march past their ex-colleagues. And, if they are known to be hot-tempered, sit behind a wide desk and make sure the office is empty of all valuable and heavy objects; it might also be a good idea to choose the biggest member of the management team to sit in the meeting with you!
Written by Gill Switalski, founder of legalpulse.com, for the September 2001 published edition of Real Business