Walking The Plank

There may well come a time in your business life when you REALLY need a member of staff to walk the plank (leave). There are many reasons why this may be the case, but you must be aware of the ‘legal’ reasons for dismissal which are limited to: capability, behaviour, redundancy or some other substantial reason.

Termination…

If you have a legal reason, then terminating someone’s employment is relatively simple and there are clearly set out procedures you must follow.  However, if you need to remove someone for a ‘non-legal’ reasons, you must understand your options and the associated risks.

In the ideal world you want the employee to walk the plank and resign, taking the decision that they have reached as far as they can go with you and need their next challenge. The skill is to have a conversation with them, in which you guide the discussion so that they resign thinking the decision was their free choice.

What could go wrong?

Whether this is achievable will depend on your ability and perhaps previous experience, your employee’s self-awareness and your relationship. Extreme care must be taken because if you misjudge any of this, you could end up with an employment tribunal claim against you for constructive dismissal and while they are at it, they will throw in a discrimination claim just because they can and because the awards are then uncapped.

How should I approach this?

There is no ideal time to have this sort of conversation, but I recommend not doing it when something has just happened.  It could be done as part of an objective setting exercise or it could be done as part of a performance improvement discussion – but if this is the case try to have a legal reason for dismissal to fall back on.   When an employee does resign, however tempting it may be, do not just say ‘yes’.  Ask them to go away and think about it and if they still want to resign in the morning to let you have their formal resignation in writing. Even when an employee resigns, they may still try to bring a claim and would have a 3 month to do so.

How can I reduce the risks?

One way many employers will mitigate the risks associated with a termination is to pay the employee an amount of money. If you intend to do this, we strongly recommend wrapping it all up in a settlement agreement. This is a legally acceptable way of ‘paying someone off’. Without a settlement agreement, a disgruntled employee could take the money and still bring a claim against you any time in the three months following their departure.

Next piece of advice…

If you are going to offer someone some money, don’t leave yourself open to writing a blank cheque. If you offer £5k and they ask for £50k or they just say “no”, make sure you know what your next move is.

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