Imagine yourself in this difficult situation: you have a low-performing employee who is affecting the productivity of your company, and you decide it's time to fire them after giving them many opportunities to improve their performance at work to avoid losing their job.
Before dismissing someone, you should think about many fundamental problems; if you do not do it with the utmost caution, the employee may file a lawsuit against you, and you will be pulled into a long, expensive, and tiring legal battle in which you will be the loser.
As a wise and responsible business owner, you should hire a lawyer to handle the company's legal matters and consult with them before firing someone.
Chas Rampenthal, chief counsel at LegalZoom, an online legal resource solutions site, offers 10 things to consider before dismissing an employee:
If your firm has a policy for firing people, Rampenthal recommends following it to the letter: "If you don’t, then you better come up with one and follow it."
The majority of termination policies include precise procedures that must be followed throughout the process and should include everything from executing the decision to terminate an employee through the proper chain of command, to determining the redundancy date. On professional websites, many helpful redundancy policy samples are accessible for free.
Rampenthal advises that you look into the source of the information that defamed the employee and led to his dismissal. “If a supervisor or co-worker supplied the reason for termination, be absolutely certain that it’s good info,” Rampenthal advises. “Getting fired for being late two times, even if your policy allows it, make sure that others who were late two times were also fired,” he says. “Basically, have a valid reason. If you’re not fair across all employees, it can backfire and lead to legal trouble.”
Rampenthal recommends consulting your HR team or your company's recruiting counsel, or, if required, further look into applicable employment laws, where you may check the labor law and legislation in effect in your country on the internet.
According to Rampenthal, never fire someone on racial grounds, because they have a physical impairment, a person who is convalescing, or a pregnant woman since you are exposing yourself to legal liability. He also doesn't recommend firing an employee who complains about a coworker or a manager or alleges harassment or discrimination charges.
According to Rampenthal, a service termination is almost unnecessary, but it is necessary to document chronic underperformance when someone is fired for failing to execute their job obligations. So, retain a detailed written record of the warnings you sent to the employee, as well as any measures you made to enhance or control their performance.
You'll have a better chance of boosting your defense position if the terminated employee sues you and you have consistently documented proof of unsatisfactory performance or other misconduct on hand, such as absenteeism, bad behavior, or tardiness.
“The more paperwork you have, the better paper trail you have, the more evidence you’re going to have to show that you didn’t fire them for an improper purpose,” Rampenthal explains. “A failure to document makes it easier for someone to say, ‘Well, it obviously wasn’t due to my performance. They fired me because I’m over 40 or because I’m an Asian-American or because I’m a female or because I’m a Protestant.’ If an employee can find another reason for termination and that reason is protected, then the lack of a paper trail is going to really look poorly on the employer.”
Never fire an employee over the phone; instead, treat them with respect by meeting them in person and notifying them of the termination decision.
If you are afraid for your safety when telling the employee of your firing decision, Rampenthal recommends bringing someone with you, preferably a co-manager.
When it comes to the question of when it is the right time, Rampenthal says he's heard a lot of different perspectives: "Some say always do it on a Friday, never on a Monday. Others say never on a Friday, always on a Monday, and don’t do it after Thanksgiving or before the New Year. Truth is, there is no right day and time. It’s going to be uncomfortable no matter when you do it."
“Be prepared to face a range of emotions, from sadness to anger,” Rampenthal says, “No matter what, stick to your plan, your script, and be professional -- which isn’t easy when someone cries or slams the table or threatens you with violence."
Most importantly, keep in mind that everything you say might be used against you in court; therefore, speak up and calmly express the reason for the dismissal, but don't dive into the details should they be misinterpreted. Many employers prefer to simply state that their firm takes a unique approach.
From the final salary to compensation, Rampenthal suggests paying close attention to the last details before announcing the dismissal decision.
For example, you should include paid vacation and sick leave allowances in their final wage, and if you want to reward an employee an end-of-service gratuity, include that as well.
You must also arrange for the employee to sign any necessary discharge papers and return all company property, such as laptops, identification cards, keys, phones, uniforms, and so on. You must also notify the IT department that company email and any other electronic access to company databases and other information systems have been disabled.
It's best for you and the company to put a stop to rumors before they start, so call a brief meeting to inform your team that an employee is being laid off. You don't have to explain why, just let them know they're no longer employed.
In this scenario, the best solution is to direct the employee to your company's attorney or human resources department as soon as possible. "Most of the time it’s sour grapes and doesn’t amount to much,” Rampenthal says, “but you can’t afford to buy a lawsuit because you failed to follow up on a claim of harassment or discrimination."
You must supply them with information regarding how long they worked in your company and the position they had, but you must not highlight their negative influence on the workplace's productivity. You are not obligated to give them any further information unless you choose to, and keep in mind that, as Rampenthal put it, you will regret if you badly impacted the terminated employee.
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