Benchmark Recruit Clients, client, advice-centre...
On the back of our blog 'how to resign gracefully' we've asked Tom Draper - Specialist employment law solicitor and director at law firm Freeths - to give us his thoughts on how to sack someone gracefully.
I once had a client who admitted to an Employment Judge during a hearing that he had stood over an employee who was sat on a stool, pointed at him and told him he was fired in the style of the Apprentice. We lost that case.
This dismissal was neither graceful nor sensible legally. Sometimes you can dismiss someone gracefully but unfairly or fairly but not gracefully, however more often than not the two go hand in hand.
Telling an employee that they are dismissed can be daunting. There is potential for angry outbursts, 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. This will reduce the legal fall out and the potential for confrontation with the employee.
Here are my thoughts on how this can be achieved:
1. Make sure that you have a fair reason
The law provides five potentially fair reasons to dismiss an employee. Broadly, there are:
(b) Poor performance / incapability
(d) Statutory illegality
(e) Some other substantial reason
Any employee with over two years' service has 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 may 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.
2. 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 the process that you follow reflects the relevant potentially fair reason. It's best to do this at a very early stage rather 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.
3. Avoid the potential pitfalls
So, 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. Perhaps they had a good motive for skulking through the office at the dead of night in a balaclava with a giant sack emblazoned with the word 'SWAG' but you won't know unless you conduct a proper investigation
- Consider if dismissal is the right decision? You need to be sure that you aren't taking a knee-jerk decision that you have considered all of the options and alternatives
- If dismissal is the most appropriate course of action, make sure that you properly communication 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.
- Make sure 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 necessarily need to know the reason for it (except for operational reasons, for example to provide assurances that their jobs are safe)
- Remember that any internal correspondence about the dismissal will need to be disclosed as part of a future Employment Tribunal but advice given to you by your HR Department or external HR Consultant would need to be put before a judge. This means that your employee could end up getting a full insight into your thought process at some point in the future and emails entitled "how can we get rid of JOe" are unlikely to help the case.
4. Consider the alternatives
Finally, there is an alternative option to a formal dismissal process, which can be used to ensure a graceful exit (perhaps because your employee has worked loyally for your company for many years).
Employers have the option to have a confidential or "protected" convrsations 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 increased legal risk in respect of the dismissal.
As well as waiving their right to bring a claim, if the 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.
You cannot completely remove the posibility 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.