7 tips for firing staff

Firing an employee can be really unpleasant and sometimes risky for your company. Here's how to keep it as pain-free as possible...

Firing someone is tough, and is a decision that should never be taken lightly. Here, Kirsty Senior from citrusHR helps both new and experienced employers alike understand the top seven tips on how to fire someone…

Don’t shy away from tough firing decisions

If you feel that an employee is not the right fit for your business, whether due to their performance, attitude, or something that can’t be solved by training (i.e. they just don’t gel with the rest of the team), then making the decision sooner rather than later is important.

Employees can only claim unfair dismissal when they have worked for you for two years or more — which means that you’ll have to be even more careful when it comes to dismissing an employee than you would otherwise after that first two years. There are some other claims, including discrimination that can be brought without having any minimum length of service, so the last thing you want to do is act outside of the law – even if it is by accident.

Use probation periods carefully

Probation periods are a good way to ensure that you have recourse to dismiss an employee during the early days of their employment with a shorter notice period, and without as much of the unnecessary stress. They usually form the first three months of the employment contract, depending on your requirements.

Probation makes your induction processes all the more important; monitoring staff’s performance and communicating with them on a regular basis should enable you to spot an issue before the three month, or other chosen, period is up.

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It’s not me, it’s you: Be clear about the dismissal

Be very clear with your employees as soon as you identify a problem. This way they know exactly what it is they are being dismissed for when it comes down to it.

You may find it difficult to tell a new employee that their performance is not up to scratch, or that things just aren’t working out, after all some people can take it a bit personally. However, ensuring that you are clear helps you to avoid unnecessary problems such as discrimination claims.

It can make it easier to refer to documentation, giving you something to back up your findings. Therefore, ensure that your employment contract and job description are very clear on how the employee’s role is structured and what is expected of them.

Follow the statutory procedures

Irrespective of length of service you should always follow the statutory dismissal procedure when dismissing employees. This is a three step process to first let them know you are considering ending their employment in writing, giving them the reasons and inviting them to a meeting to discuss it. Then hold the meeting, allow them to respond before you make your final decision, and finally give them the right of appeal.

Whilst you don’t have to when there is less than two years’ service, at citrusHR we always recommend confirming why they are being dismissed in writing. There are two reasons for this: having a clear decision in writing helps defend any potential discrimination claims that may be brought and offering the right of appeal in writing shows evidence of a fair process. The appeal itself allows you to address anything internally if there is going to be a formal dispute.

This minimal and simple process is usually fine to use with staff with short service (less than two years) and where you have decided that this can’t be fixed, but if you have contractually binding disciplinary or performance management/capability procedures then you will need to follow these to avoid a claim for breach of contract (another reason we always recommend that these type of procedures are explicitly non-contractual).

Sometimes however you will decide that you want to follow your full procedure anyway, and try and remedy the problem, rather than jumping straight to dismissal, even if you have a short serving member of staff. This would be seen as best practice and certainly the safest way to terminate employment. Disciplinary and Performance Management Procedures usually follow the same format, which will be an informal attempt to resolve matters followed by a series of formal meetings and warnings before getting to a dismissal – essentially giving an employee the opportunity to improve before the decision to dismiss is taken.

Once you have issued a warning you would usually give them at least a month to improve, and if they don’t you will need to invite them to a formal disciplinary or capability meeting to discuss the issue further. Depending on the outcome of the meeting, you will need to decide on whether to issue a verbal, written, then final written warning. Or of course if they’ve improved you don’t need to issue anything other than a confirmation that the issue has been concluded!

A plan for improvement is necessary to help the employee get a clear understanding of what is expected of them. For example, over what time frame will you review the decision? Do they need support? What is the goal of the plan?

To give a more concrete example, if the employee has identified to you that they are performing badly due to feeling overworked, try and help them to reduce their workload or help with time management to see if this improves things. When it comes time to reviewing the decision you have made, you can then see how your changes have affected their work, and others too – as if re-organising work causes problems for the rest of your staff, it could be that keeping on the staff member is not worth it.

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Is it the right decision? Consider all the options

Initiating a dismissal procedure shouldn’t be the knee-jerk reaction to poor performance. After all, employees are human beings who make mistakes once in a while. If they’re an otherwise star player, it might be that they are experiencing personal issues outside the sphere of work – in this case especially it might be worth asking them if everything is OK instead of just throwing the book at them. However, it’s good practice to check if there are any extenuating circumstances with all under-performing staff, just to ensure that all bases are covered.

Should you find out there is an issue, provide whatever support is reasonable. After all if you’re only a small business, you may not be able to afford them taking a few weeks off to get their life back in order. When assessing your reaction, the size of your business will be taken into account by a tribunal to assess whether it is reasonable.

Protect your business: Keep written evidence

As with any other process that can lead to legal action, written evidence is really important to your case. Even if you don’t suspect that you’ll have a problem following the dismissal, taking the time to compile notes, converse with the employee and seek confirmation in writing, and generally just avoiding verbal-only exchanges is vital.

Furthermore, in an age where even the humble telephone can be a high-quality sound recorder, beware of covert recordings in meetings. Usually this sort of evidence is inadmissible, but it can sometimes be used against you if anything is said that shouldn’t have been. If you keep this in mind, it might keep you from saying something that might seem innocuous at the time, but could appear discriminatory to a court!

Managing the impact on the rest of your company

Take the time following a dismissal to be clear with your employees about what has happened. Without telling the team too much regarding the procedure, being very clear with them about the fact that it was the individual’s performance will do three things:

  1. Re-assure them that this is not a company issue, and that their jobs are secure
  2. Let them know that you respect them enough to be clear with them, and have their wellbeing in mind
  3. Send a message that if they can’t perform to the level that is expected, the consequences are clear

However, this process all falls down if you are unable to act consistently. If your employees see one person fired following the normal, expected process, but others left to carry on despite poor performance, you will be seriously undermining your ability to discipline employees and you may open up the possibility of a discrimination claim.

Kirsty Senior is Co-founder and Director of citrusHR, the small business HR experts taking a fresh approach to HR support.

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