Crash Course: The fair way to sack someone

Crash Course: The fair way to sack someone - Johnson has got to go. His work is second-rate, he's always hung over in the morning, and he's a disruptive influence. Worse, he's not With the Programme; he's got that annoying smile that lets everyone know he

by ALEXANDER GARRETT
Last Updated: 31 Aug 2010

Johnson has got to go. His work is second-rate, he's always hung over in the morning, and he's a disruptive influence. Worse, he's not With the Programme; he's got that annoying smile that lets everyone know he thinks your strategic plan is balls. But how to get rid of him without ending up on the wrong side of an employment tribunal? Is it better to nail him for misbehaviour, tell him he doesn't cut the mustard, or just make him redundo?

CONSIDER YOUR GROUNDS. Disliking somebody is not grounds for firing them.

There are five acceptable reasons for dismissing an employee: misconduct; capability or performance (including absenteeism); redundancy; breach of statutory obligations (eg, a driver losing their licence); and 'some other substantial reason', such as your main customer demanding the person's removal. 'If it comes before a tribunal, the employer always has to go first and specify the reasons for dismissal,' says Michael Burd, a partner in the employment department at solicitors Lewis Silkin.

DO SOME HOMEWORK. Before acting, check the individual's contract and their service record. If they've been there over 12 months they have a right to pursue unfair dismissal; and at less than 12 months they can still pursue a claim of discrimination on grounds of sex, race, disability or union involvement.

FOLLOW PROCEDURE. Have a clear policy of procedures for disciplinary and redundancy cases. Give the employee warning of allegations or complaints against them; give notice of a meeting where they can put their case; and allow them to have a colleague or union representative there. Says David Marshland, employment law specialist at HR consultancy William Mercer: 'If somebody has done something serious and you're uneasy about having them on the premises, that is not an argument for sacking them on the spot. It is an argument for suspending them.'

KEEP AN OPEN MIND. The biggest mistake employers make, says Marshland, is to make a snap judgment without investigating all the facts. Examples include a woman sacked for being drunk when she had been taking a prescribed medicine. In cases of misconduct, the employee should have the chance to defend themselves against the charges; where performance is the issue, they should be clearly told the standard expected and given a reasonable chance to improve their work. In redundancy cases, the employee should be able to argue against being selected, and alternative positions explored.

BE CONSISTENT. 'You can't sack one employee for being drunk at work if others have been allowed to get away with it,' says Angela Baron, adviser to the Chartered Institute of Personnel and Development. 'Otherwise, a tribunal might say that the person had a reasonable expectation not to be disciplined.'

BE KIND. Handle dismissals with sensitivity. 'If you do it bluntly,' says Marshland, 'then not only will the person who is sacked be hurt, but those left behind will feel traumatised and demoralised.'

MANAGE THE NEWS. It's often crucial to the sackee that their departure is announced in a way that keeps their pride and reputation intact. This may be a bargaining chip for the employer, and it will shape perceptions of fairness among colleagues.

DON'T FUDGE. Don't be tempted to make somebody 'redundant' when sacking them for other reasons. You could find yourself in a tight corner when you need to replace them a few weeks later.

DO SAY: 'In compliance with company procedures, your continued employment will be discussed at a meeting on Friday, when you will be able to put your case against dismissal.'

DON'T SAY: 'As of now, you're dead meat. No excuses - just empty your desk and get out of here.'

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