How to Sack Someone Gracefully
Benchmark strongly believes that you can dismiss somebody gracefully.
Telling an employee that they are dismissed can be very daunting. There is huge potential for an angry outburst, awkward tearful bargaining, or furious allegations. Dismissing an employee is often a last resort but where it is necessary it should be done with as much grace as possible.
Benchmark believes there are four key points employers should consider when dismissing an employee.
Ensuring there is a fair reason
According to the law there are broadly five fair reasons to dismiss an employee. These are; Misconduct, Poor performance/incapability, Redundancy, Statutory illegality, and some other substantial reason. Employees that have worked with the business for over two years have the right to bring an unfair dismissal claim, and in some cases, employees with less than two years’ service may also be able to claim that their dismissal was unlawful due to discrimination or the assertion of another relevant statutory right. In practice there may be loads of reasons why you want to dismiss someone but unless those reasons fall into one of the five potentially fair reasons above then the dismissal is unlikely to be graceful and will almost certainly be unfair.
Ensuring you follow the right procedure
Once a potentially fair reason for dismissal has been identified, you will need to think about what the correct procedure is to follow so that the dismissal is managed fairly. For example, a misconduct dismissal requires a very different process compared to a redundancy dismissal. Following the correct procedure can assist you in demonstrating that the overall dismissal decision was fair and an option that any reasonable employer could have taken in the circumstances. Even with what appears to be the most straightforward of dismissals, it is possible that you could find yourself having to justify your decision to an Employment Tribunal. You will therefore need to ensure that the reason that you chose to dismiss the employee is genuine, and that the process that you follow reflects the relevant potentially fair reason. It’s best to do this at a very early stage rate than making it up ad hoc once you are in front of a judge. A key part of a graceful dismissal is also communication. If a dismissal comes out of the blue it is likely to be undignified and difficult. Even if the employee uses the process to make wild allegations in order to try and avoid dismissal it is important that you address these patiently, and comprehensively. If an employee feels heard they are much less likely to bring a claim.
Avoid the potential pitfall
Once you know the reason why you want to dismiss an employee, and you are confident that it fits into one of the potentially fair reasons and you also know the correct procedure to follow, what do you do next? Identify the potential areas of risk. Firstly, ensure that you do not pre-judge the outcome of any dismissal process. You may think that you have an irrefutable reason for termination but the employee may be able to adequately explain otherwise. Next, consider if dismissal is the right decision. You need to be sure that you aren’t taking a knee-jerk decision and that you have considered all of the options and alternatives. If dismissal is the most appropriate course of action, make sure that you properly communicate the decision to your employee and the reasons for it. Don’t be tempted to stray from the original reason or try to introduce new allegations to justify your decision. You must ensure that the employee’s confidentiality is protected, even after they have left. Your other employees will undoubtedly notice the departure of their colleague, but they do not need to know the reasons for it. Remember that any internal correspondence about the dismissal will need to be disclosed as part of a future Employment Tribunal, but the advice given to you by your HR department or Consultant would need to be put before a judge.
Consider the alternative options
Finally, there is an alternative option to a formal dismissal process, which can be used to ensure a graceful exit. Employers have the option to have a confidential, or protected conversation with their employees with a view to offering them the option to leave under a Settlement Agreement. Whilst this does come at an additional financial cost, it can be a good way to ensure a graceful exit especially if you have identified an increased legal risk in respect of the dismissal. If an employee agrees to enter into a settlement agreement, a reference and announcement can be agreed as well as a severance package which can often go a long way to ensuring a graceful departure.
Whilst you cannot completely remove the possibility of legal action because dismissing employees always involves an element of legal risk, but by dismissing employees as gracefully as possible it can help to reduce this risk.