Four things to consider when firing an employee

Following the high profile firing of US Secretary of State, Rex Tillerson, Employment Law and HR specialists Peninsula offer some advice for business owners considering firing an employee.

Employee packs up desk
Just over a year into his administration, Donald Trump appears to be shaking up his White House staff again with the ousting of his Secretary of State Rex Tillerson, and the announcement of his intention to replace him with the CIA director Mike Pompeo.

Donald Trump replaces secretary of state 

The White House may insist there is no turmoil however it is hard to see anything getting done with the constant shake-ups and rivalries. From a Human Resources (HR) perspective, a high staff turnover and a culture of hiring and firing on a frequent basis can be disruptive to staff and can reduce morale.

Advice for business owners 

So what advice on firing would Employment Law and HR specialists Peninsula give to business owners with a penchant for frequent firings and to the man who is synonymous with the phrase “You’re Fired”? 
  1. Be certain – the heat of the moment can cause business leaders make snap decisions that are neither correct nor rational. Even if the business does have a zero-tolerance policy for certain behaviours, they should check to see if employee's actions fall into the parameters of the policy. When a business leader is mad it is easy to unintentionally forget about guidelines and laws and, while the employee can come back after a mistake, no one will ever forget what happened and it could lead to an employment tribunal. Since fees have been abolished, there is no deterrent against employees chancing their luck in front of a tribunal. Employers may now find a spur of the moment decision could lead to them facing an unfair dismissal claim, for which the compensation can be over £95,000 in the UK (rising to over £98,000 in April).
  2. Follow a fair procedure – the business may want to remove the employee straight away, but the law sets out that a fair procedure must be followed. The ACAS Code of Practice on Disciplinary and Grievance Procedures sets out the minimum process. A tribunal will consider whether the business has followed the Code or not and a failure to apply the Code can lead to a 25 per cent increase in any compensation award. It is important to remember to follow any further dismissal process requirements included in the company handbook and disciplinary policy.
  3. Give the right notice – the only dismissal that does not require notice is one for gross misconduct as this immediately ends the contract of employment. The notice given to an employee when they are dismissed is usually laid out in their contract but, in some circumstances, the statutory notice may override this. Statutory notice starts after one month’s service and increases at a rate of one week for each year of service up to a maximum of twelve weeks. If this is greater than the contractual notice, then statutory notice must be given. Giving the employee the correct notice is a must—failure to do so can result in a claim for wrongful dismissal.
  4. Keep a paper trail – it’s essential to keep written records of all matters that have been discussed with the employee including all letters and minutes of all meetings (signed and dated by everyone present). This is evidence to prove that a full and proper procedure has been followed and a fair decision-making process took place in case a dismissed employee takes the employer to a tribunal. 

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Addressing underperforming employees

Peninsula HR director, Alan Price, added, “Even when employers conduct a full and thorough recruitment exercise, they may find themselves with an employee who’s underperforming and failing to meet the key requirements of their role.“The earlier the lack of capability is addressed, the easier this situation is to manage for employers. If the employee’s performance still doesn’t improve, the employer should examine whether there are any other roles suitable for the employee in the business before considering a dismissal.“Only if a fair procedure has been followed will a dismissal for capability be fair. Dismissing an employee is a usually a necessary but often unpleasant and difficult part of running a business however the Trump administration is increasingly feeling like a reality TV show, in which someone gets voted out every single week.”
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