“You’re free to pursue other interests…” a.k.a. How to fire an employee (fairly and without ending up in court)
Sometimes things just don’t work out with an employee. Whether that’s due to Alex falling asleep at his desk, Emma consistently missing meetings due to sleeping in or Mark not hitting his target for the 13thmonth running. You know you need to take action, but you just don’t where to start. Don’t worry, you’re not on your own.
We speak to many small business owners in the same situation. So, we’ve created this practical guide describing the basic steps we follow when advising our clients on how to dismiss an employee fairly.
Be aware though - dismissals are rarely straightforward. We always recommend taking advice on the specific circumstances before taking action. Have a look at these steps before you do anything.
Step 1: Why are you thinking of sacking someone?
Firstly, you need to identify the core reason you have decided to consider this course of action. Often when you are unhappy with an employee several things have happened which have prompted the decision. You need to think carefully about what they are.
It’s time to take a step back and identify the core issue. The most common problems will be poor performance, general behavioural issues or fit with the team. Whatever the reason, it’s important you are clear about it before you start any discussions with the employee. You need to be able to explain your concerns objectively and clearly.
Think about it, write a list of concerns (and their impact) and ensure you have complete clarity.
Step 2: Is it legal?
Gone are the days when you could say “Get your coat Sharon, you’re fired”. Even Lord Sugar wouldn’t get away in today’s employment market. This isn’t always simple.
You need to consider the legal implications. You have a clear rationale, but you still need to take into consideration the types of claim an employee could make at an employment tribunal (if you do decide to dismiss them).
Regardless of length of service, any employee can make a claim on the grounds of discrimination. Discrimination comes in many forms, consider: age, marriage, disability, pregnancy, race, religion, sexual orientation or gender reassignment.
Employees with more than two years service can also claim unfair dismissal.
Whilst most managers don’t intentionally discriminate or unfairly treat an employee, this isn’t clear-cut. People may perceive circumstances differently. Take a critical view of the events leading up to this point to identify any potential legal risks. Once you have done this, if it’s not as simple as it first seemed, you may decide you want to try to resolve the issues before moving on to the next step.
Step 3: The gloves are off…
You need to prepare to raise your concerns with the employee. Not in an accusatory or aggressive way, that’s not going to make this difficult conversation any easier.
You need to meet with the employee to discuss your concerns before making any final decisions. Before you do this, write down the points you want to discuss with them, gather any evidence to support each of your concerns and be fully prepared.
If you haven’t taken any HR advice by this point, you need to do that now. The way to raise your concerns may need to adapt to fit the circumstances – for example the approach you take to dealing with sickness absence problem in a long standing employee, could be different from the approach you take when a new starter fails their probationary period.
Step 4: Have you got five minutes…?
You need to formally invite the employee to a meeting to discuss your concerns not just call them into your office unexpectedly.
Where your intention may be to fire an employee, as a minimum you should write to them inviting them to a meeting to discuss your concerns. This invitation should let them know that you are considering ending their employment. This may be a shock to them, so be prepared.
The invitation should tell them the reasons you’re considering this course of action and include the evidence you want to discuss. You also need to offer the right to be accompanied at the meeting by a trade union or colleague.
Plan in advance and to give the employee some notice before the meeting – 48 hours is a good guide if circumstances allow it.
Step 5: Yeah but…
The meeting needs to give the employee an opportunity to put forward their view on your concerns. You should explain each of the reasons that have led to the meeting and talk through any supporting evidence you have shared. Once you have done this, invite the employee to put forward their view.
Ask the employee any questions you may have, to help you make your decision – they might convince you not to end their employment. Have someone in the meeting to take notes so you can remind yourself of what was discussed if needed.
At the end of the meeting take as much time as you need to consider what was discussed before making a final decision. You don’t need to deliver the outcome in the meeting. Don’t rush the decision or react immediately if the employee demands to know (remember they may be shocked or angry) – this is an important decision, not to be taken lightly.
Step 6: The final countdown
It’s time to deliver the outcome. You’ve made your decision; you need to tell the employee. You can do this in person or by phone, but you also always need to put your decision in writing. In the case of a dismissal you should also offer the right to appeal the decision (again, specialist HR advice is recommended if you get to this point).
This guide is designed to give you the basics around managing the process of firing an employee fairly. It’s not designed to replace good HR advice, specific to your circumstances and organisation.
If you have a problem employee, or want more bespoke advice or support when dealing with issues like this, get in touch.
People Management Partners
We're more than your typical HR Consultants. We work with SMEs to provide forward thinking and results orientated HR services across London.
Working with like-minded people, we help you attract and retain the best people. Our goal is to work in partnership with you, to create great places to work, whilst ensuring you're still compliant with your legal obligations.
We keep HR human.