Terminating an Employee, taking the time.

Posted By on November 3, 2009

When an employer decides that it needs to terminate an employee a large number of questions arise. It is not difficult to find information, in many different forms, which describe the actions that an employer should not take when they terminate an employee. Many of the decisions and actions taken by an employer at the onset of a termination will drive a situation and quite possibly determine the final outcome where an employee claims that they have been wrongfully terminated. The time of firing an employee on the spot is well past and raises so much risk than I cannot think of a situation where it would be advisable. Even where you are certain that a firing is going to occur the employer needs to take some time to consider his or her actions and make a conscious decision not only why they are going to terminate this person but also how. When you are angry or upset because of the action, or inaction, of an employee you may not take the time to think things through to make the best possible decision for your company.  Also remember that if you are dealing with a Union there is another level to this process.

Take the time to determine whether some immediate action must be taken and then take only that action.  It is important that you keep all, or at least most, of your options open at this time.  If you must remove an employee from the work area immediately because of some employment related reason, such as safety, security or confidentiality, then you may wish to look at a suspension of the person, whether paid or unpaid, to give yourself the time to cool down, review all of the facts and make a business decision which is devoid of emotion. I prefer a paid suspension since it does not have a readily apparent economic impact upon the employee and it gives management and incentive to pursue further investigation as a priority.  The good side to a suspension is that it can be used in situations where some form of harassment has been alleged against an employee and you really do not have the option of separating this employee from the immediate workplace.  Keep in mind that if you’re going to set a practice where you suspend an individual prior to termination you should, in most instances, make this procedure standard throughout your organization to avoid any future appearance of discriminatory action. Even if you suspend someone for a few days to give yourself time to review the full matter and give it due consideration the cost to you of a few days pay could save you a great deal of time, trouble and other costs in the long run.

Take the time to fully and carefully consider the action which you are going to take so that you can look further than just your knee jerk reaction to fire someone. This will give you the opportunity to look over the full situation and determine all of the ramifications of the action which you are considering. By careful consideration you will have a better chance to avoid making a mistake in the manner or reason for the termination. With the large number of rules, regulations and employment laws which are on the books you cannot afford to make a spur of the moment decision which has permanent ramifications without due consideration.  It is advisable to have the experienced advice of another person to whom you may confide all of the facts surrounding the matter.  This person should have the strength of character to make up their own mind based upon the facts which you present to them and give you their opinion of what they believe should be the action taken in the situation.  Please be sure to provide the facts in a neutral fashion without leaning to the left or the right in their presentation to limit the bias of the neutral opinion which you are seeking.  Also remember that unless you are speaking to an attorney who is acting in the course of his or her representation your discussion might be subject to disclosure in any future discovery taken in the event a lawsuit is filed.  Of course the other side of the coin is that if you decide not to follow the neutral advice you have obtained, unless it is from the attorney who is representing you and your company, then this neutral opinion could very well turn into a piece of evidence used against you by the disgruntled prior employee.  While this probably does not need said, do not get this opinion from someone in the workforce no matter how much you respect them.

Take the time before you take action to carefully review and consider the entire situation and then make a decision based upon good and sound business practices. Emotions such as anger, contempt, feelings of betrayal and even compassion do not have a place in making this decision.  Remember that the decision which you are making for this one individual is setting a precedent which may very well impact your dealings with all of your other employees whether they are employees who provide great value to the Company or other services or whether they do not.  Future actions which you take may and probably will be measured against those past actions which you have taken.  I have prepared many employer sided Position Statements to be provided to the Investigator in the course of EEOC or OCRC investigations and anyone who has participated in one of these investigations will agree that a major focus of the Investigator is upon past practice.  Therefore take care as to what precedents you set and be sure that the you and your company can live with them in the future. 

Take the time to decide whether you are setting up a precedent that you really want to use in future employment decisions.  When an employer approaches me for advice concerning the termination of an employee one of the first questions which I ask is whether the employer considers that employee an asset or liability to the Company.  If the answer is a liability then I ask the employer if this individual were your best employee would you be willing to terminate them based upon the facts in this case?  If the employer would not be willing to terminate their best employee based upon these facts, and assuming there are no additional facts which might be used to distinguish this matter from another, then I usually recommend to the employer that they use another form of discipline that they would be willing to use against that good employee under the same fact pattern.  Again, do not tie yourself to a precedent that you cannot live with. 

Most managers risen to a higher level in the Company have shown that they have the ability to make reasonable employment decisions.  Taking the time to make a good decision and getting good advice to support it only makes good business sense.  Slow things down, take necessary action but only that, take the time to think things through, get imput from a trusted source and establish only those precedents in policy that you can live with.  It is very difficult, and sometimes impossible, to un-ring a bell.

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One Response to “Terminating an Employee, taking the time.”

  1. Steve says:

    Interesting reading US law compared to English & Welsh law.

    You say “If you must remove an employee from the work area immediately because of some employment related reason, such as safety, security or confidentiality, then you may wish to look at a suspension of the person, whether paid or unpaid, to give yourself the time to cool down, review all of the facts and make a business decision which is devoid of emotion.”

    Over here to suspend without pay lawfully, one must have a contractual clause enabling this power. To do so without the clause would leave the employer liable to a breach of contract claim.

    I agree where you say that one shouldn’t jump to a spur of the moment decision, I suppose it crosses all jurisdictions that a reasonable investigation should be carried out before taking disciplinary action.

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