Posted by Malcolm Gregory, Partner
Three things to think about before firing an employee
Dismissing an employee can be a daunting prospect. There are numerous horror stories about aggrieved employees successfully clawing large compensation pay-outs from their ex-employers, with the employer left wondering what they did wrong. Our previous article on disciplinary and grievance will help you know what process to follow in such circumstances. But what if you want to avoid the process altogether? Or, your reason for dismissal isn’t as watertight as you first thought?
Negotiated settlements give the parties the opportunity to part ways amicably, confidentially and most importantly on agreed terms, which avoid costly litigation. Here are three things you should consider:
This is a fairly new concept, which enables employers to manage employee exits without being exposed to the risk of an unfair dismissal claim. When handled properly the content of the conversation is confidential and cannot be relied upon in unfair dismissal proceedings. There is no need for there to be an existing dispute between the parties to hold a protected conversation. They are usually positioned to the employee as an alternative to the start of a disciplinary or redundancy process. The employee leaves on agreed terms and the employer avoids having to carry out a process that may result in the employee’s dismissal.
Without prejudice communications
These are different to protected conversations, albeit they are still confidential from an employment tribunal. Without prejudice communications can only be used when there is a genuine dispute already in existence. Unlike protected conversations, which only cover ordinary unfair dismissal claims, without prejudice communications cover all employment claims, including breach of contract, discrimination and whistleblowing.
This is often the end product of a protected conversation or a without prejudice negotiation. It’s a contract in which the employee agrees to waive any claims they may have against the employer as a result of their dismissal. In exchange, the employer pays the employee a sum of compensation, subject to the employee agreeing a number of warranties around restrictions, confidential information and company property, as examples.
Learn more about how to properly dismiss an employee and avoid the risk of a claim at our HR Training workshop ‘Dismissing an employee’ on 20 June in our Swindon office.
For more information, contact Helen or another member of the Employment & HR team
01793 847 777 Email us
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