When you first hire an employee, both of you are probably very optimistic. The manager is excited and expecting great things, while the new professional is eager to prove themselves in the workplace. Each of you are looking forward to a successful working relationship, but for whatever reason sometimes things just don’t work out.
Perhaps the new staff fluffed up their resume a bit, behave in an inappropriate manner or simply cannot (or will not) get the job done. Sometimes it’s not even a case of performance, but the harsh realities of business mean that layoffs have to happen. During a career in management, there will be a time that you need to terminate an employee. It’s never an easy conversation, and nothing can make it truly painless but if you follow these steps you’ll be in the best position to prevent a costly legal battle, and remain professional at the same time. If you’re getting stuck at all try this course on effective management, and find out how easy and important it is to make the right decisions when they need to be made.
Making the Decision to Terminate
You should never, ever fire an employee because you’re angry. This may seem like an obvious statement, but in the heat of the moment anything can (and has been known to) happen. If you tend to have an explosive personality, you can temper your feelings in this course that’s designed to teach you the skills to calm an angry person. It only hurts your own position if you fail to maintain your own self control.
A decision to fire one of your team can never be done in the heat of a moment. Take some time and clear your head before you do something rash. After you’ve cooled off if the situation remains the same, that’s fine, so long as you’ve made the final decision based on logic and have put together a bulletproof plan. If you encounter an employee that’s doing something very inappropriate, like drinking or using drugs in the workplace, your safest path is to suspend them immediately while you prepare your case for firing them.
Before any decision is made you must review the employment policies of your company, and the employee’s personnel file. If it’s full of warnings and counseling because of a number of previously failed attempts at rehabilitation, there is little chance of litigation being sought. The employee is probably only surprised that they still have a job, even though they are most definitely keeping an eye open for a plan B.
The opposite case is an employee who has worked in your company for many years, and has a personnel file filled with adequate reviews and evaluations. In this case there is a strong argument that can be made the dismissal has been done for personal reasons, and not performance if you do it wrong – and suddenly you find yourself in a whole world of legal trouble. In this situation you need to document and explain the poor performance, with written warnings and the opportunity for your staff to seek counseling to improve. If a restructure has brought on the change in the individual, perhaps assigning them to another team is a good way to combat any conflicting personalities following the change. You should do all you can to keep staff who have the potential to be great employees, and learn a little bit more about how to manage the performance of your team in this course.
In either case you must follow your company’s written policies on termination to the letter. If you get this wrong or try to go around the system you risk getting caught, and ending up in court. There have been many cases where the courts decided termination was improper, because of an ulterior motive from the firing manager. If no written policies are in place, then you’re limited to acting in a similar method as has been done in the past with the same situations. From a legal standpoint, what policies and procedures have been done in the past are just as effective as what’s been written down. Tread carefully.
When to Terminate – and Potential Legal Problems
The timing of the termination also needs to be considered, and depending on the situation can get you in quite a bit of legal hot water. If a woman is pregnant her job is protected by law, even if her conduct following the announcement of her pregnancy is less than satisfactory. Typically a court will link a dismissal purely with her pregnancy and file in her favor, and watch out because the need for financial benefit is a significant motivation for litigation. From an employer’s perspective, regardless of who is right – you’re going to have a very difficult time winning a case where there is an unemployed pregnant woman in front of a jury.
In all terminations you need to document the reasons which resulted in firing the team member. The dismissal should be explained in detail in their personnel file, and if it has been done incorrectly (without warnings or efforts to improve) it’s very easy to conclude that the firing has been done with improper motives. Typical employment contracts state that either employees and employers have the right to terminate the employment for a good reason at any time, but almost every person can claim that they are being discriminated against. You can learn a little bit more in this course on diversity training.
The most common traits for discrimination are race, religion, sex, pregnancy, age, sexual orientation, or physical and mental disabilities. The ability to assert reverse discrimination is another tool in the arsenal of a disgruntled ex-employee, where they can get protection under discrimination laws even if they don’t fall into a minority group. Avoid all this and follow the book, with the appropriate warnings and documentation of poor performance in place before you terminate.
Having that Hard Conversation
It follows that you should always be truthful when dealing with employees you’re firing, because it’s very easy to get caught out. If you say the company is downsizing to soften the blow from their poor performance, you lose all credibility when you put up a “wanted ad” to find a replacement. If legal action is sought this simple falsehood won’t help your case in the eyes of the jury. One lie that you’ve proven to have told leaves them questioning everything else that you’ve said, and has the jury questioning whether or not they can believe you at all.
To help manage any hard feelings, pay the employee any money owing to them at the time of their termination. This isn’t legally required, but if you cover their time worked, sick leave or annual leave days that are owed you can help soften the blow from a disgruntled employee. If it’s not possible to pay at the time of termination, be clear when they can expect their final check. Severance should also be offered at this time, if that’s part of the plan. You need careful consideration when putting together a severance package, because despite helping to reduce any animosity, it can backfire if you don’t do it right. Have your attorney draft your severance contracts, because if they are put together incorrectly it can make it seem like the employer is covering something up, or it may not even have legal force because it doesn’t comply to specific legislation in place to protect certain demographics of employees. Trust the experts on this one.
Every termination interview needs to be done in person, with a third party as an observer that is there to document the exchange. Termination discussions are often very emotional, and this allows one person to lead the discussion while the other acts as a witness to all being said. If you decide to handle the meeting alone, you should draft a memorandum immediately afterwards that covers everything that was said in the termination interview. One of the best people to have in the interview is the direct supervisor of the employee, who can offer valuable insight into the actions that resulted in the dismissal, and can give insight and advice if the terminated employee needs further help in finding a new job. They’ll also be able to give insight on the staff who think the decision is unfair, and may be able to help gauge which staff will follow up with legal action.
In the termination interview, always summarize the reasons for the dismissal on a letter. This allows you to carefully think about why this is being done, and how you actually say it. Deliver this to the employee during the final discussion so they have it clear as to why the decision was made, and a general guideline of the reasons why. Always stick to the facts, and with reasons that you can prove. You don’t need an encyclopedia full of every allegations under the sun, all you need is sufficient reasons for the termination, and the documentation to back them all up.
Throughout all of this the best advice remains to simply be respectful. There will be many emotions coming out in the meetings so try your best to handle these with tact and consideration. If you’re degrading and insulting you run the risk of aggravating the fired employee and face a higher chance of legal action. Aim to have the discussion in a neutral meeting room or outside of the office and keep the discussion brief. You’ve spent a lot of time drafting the termination letter so let them read it, and keep your comments to the point. The final decision has already been made, so what you’re actually doing is simply communicating this to your staff. Typically an employee will simply acknowledge the reasons for termination, but sometimes they can spark up an argument. Learn about how to manage invalid arguments in this recent post, and simply do all you can so you’re not drawn into the argument. Another wildcard is to never say something complimentary about the ex-employee in a termination interview if it’s not true. Anything said in kindness can hurt your position if the matter is taken to court.
Firing an employee is not meant to be fun, and it’s definitely not easy – but if you follow these guidelines you’ll be well set to make the process as professional and efficient as possible, while minimizing any chance of repercussions through the courts. It’s a conversation that all managers need to have at one point of their careers, so make the right choice and do all you can do get it done properly. Doing it right means less headaches for you down the track!