The perfect dismissal is all
about timing and execution. In some circumstances, it follows months of
warnings, performance management and training. In others, it is achieved when
the employee leaves quickly and quietly. Natalie Godfrey, an associate in the
employment practice at Allen & Overy
law firm, outlines 10 easy steps to the perfect performance dismissal.
The first step, probationary periods, are the most important.
Use them well – they are your friends. It is easier to dismiss someone after
six months than after a year. Delaying a dismissal might seem kinder but it
damages the business and it is better for the employee if they know the score
sooner so they can get another job.
For employees with one year or more
continuous employment, the second step is to decide
whether the business is going to have the time, resources or inclination to
follow the performance management route, as it can be lengthy.
The third step is to plan your fair
procedure. From October, there will be statutory minimum procedures. Don’t be
too afraid of these; just be aware you need to ensure you follow them as a
minimum standard (many employers do, but be aware of the interaction with
The next steps are
at the heart of an employment relationship and can be used to demonstrate that
you have followed a fair procedure. The fourth is appraisals: annual or half
yearly appraisals are essential. You can’t expect an employee to react well if
they are fired (or if their bonus wouldn’t buy a copy of Heat magazine), if no one told them they were
poorly performing. An appraisal should not be filled with nasty surprises –
manage expectations and give immediate feedback.
The fifth is documentation. This is key. The Employment Tribunal
expects written objectives, minutes of meetings, warnings, etc. If your
documentation is skimpy, you won’t convince the tribunal.
The sixth is regular monitoring –
you need to meet the employee halfway. There is no use
setting objectives or giving warnings if you are not going to monitor progress.
Set targets and objectives. If they are
met, great. If not, move to the next stage.
For the same reason, the seventh step
is support and training; there has to be buy-in from
the employer if you genuinely want to see improvement.
If an employee goes off sick,
establish whether there is any underlying issue (for
example, bullying or stress). Second, manage proactively; this means
occupational health reports with prognosis. A GP note saying ‘anxiety’ is as
much use as a chocolate teapot. Third, try to get them back as soon as
possible. Last, remember to stop contractual sick pay when it expires. In some
circumstances, continuing sick pay can be a reasonable adjustment if disability
discrimination is in issue, but if you are genuinely trying to facilitate a
return to work, this is
unlikely to be the case.
If you think the dismissal is not
going to be ‘fair’, the employee is senior, or you are
worried they may go off sick, you may decide to ditch the technically perfect
performance dismissal. The key to a potentially unfair but quick dismissal is
cash and communication. The ‘without prejudice’ termination (such as “we will
start the performance management process or alternatively we can do a deal”)
has been challenged in recent cases. Assume that your off-the-record
conversations may be disclosable.
Do not say anything embarrassing, do raise the issues first. The most high-risk
strategy is where there are no demonstrable issues. Accept that here the chequebook will be at its most
vulnerable, but that may be better than retaining an employee who is not
fitting into the business.
Use a compromise agreement. Yes, it
involves lawyers but it is a valuable risk management tool. If you go down this
route remember to carve out FSA references (if appropriate), use
confidentiality clauses and budget for a contribution towards legal fees.