These boots are made for walking - how to exit a difficult employee

Many businesses have experienced a need to ask employees to move on, whether due to conduct, performance, redundancy or becoming irrecoverably unfit for work. While this process is seldom easy, generally, there are clear rules around how such exits must be fairly and lawfully managed.  

But what if there’s an issue that doesn’t fall within any of the above reasons to ask an employee to leave, or if, as a business, you don’t want to spend time going through a lengthy departure process? 

There are alternatives to bringing an employment relationship to an end. You’ll often hear these approaches called ‘settlement discussions’ and ‘settlement terms’. However, they must be very carefully managed to avoid inadvertently creating an unfair dismissal situation.  

Employees with less than 2 years employment service

In April 2012, the UK government amended the law, so that employers can bring an employment contract to an end, with far less process and effort, where an employee has been in their employ for less than 2 years (technically, it’s 103 weeks).

This means that for employees with less than 2 years of service, their rights regarding termination of their employment are, broadly speaking, only those set out in their contract.  

Whilst this should make it much more straightforward to exitunsuitable employees, there are still some conditions, called ‘protected characteristics’, which will prevent you from simply informing that employee that their position with you must end. Not taking into account these conditions is a risk for employers since they may otherwise find themselves on the receiving end of an unfair dismissal claim. These conditions include, the employee participating in trade union activity, asserting a statutory right (e.g. the employee bringing a claim for unlawful deduction from wages), whistleblowing and discrimination, amongst others. 

Employees with 2 years or more of employment service

A persistent myth is that employers can safely have “off the record” conversations with employees and agree the terms on which they will leave. ‘Safe’ is the key word here. ‘Off the record’ conversations are not always safe or advisable and they may risk fundamentally breaching the contract (essentially providing the employee with a constructive unfair dismissal claim, for which compensation and potentially reinstatement can be claimed).

To discuss an employee’s exit in a risk-free way, the law does empower employers to have what’s called a “protected conversation” with that employee, but the formalities surrounding these particular conversations have made it a pretty unpopular option. 

 The “without prejudice” protections are not that helpful either, since this protection only applies where the employer is seeking to resolve an existing dispute between it and the employee. 

So, if no legally acceptable, recognised reason for dismissal of an employee exists and there is no existing dispute to settle, you will need a way to propose the idea of exit to the employee. Because of the risks involved (as discussed above), it’s always easiest where the employee triggers discussions by enquiring about whether an exit package could be agreed. To gauge employee interest in pursuing that possibility during formal discussions about that employee’s position within his/her current role, you could say that there may be an alternative to these proceedings if the employee would like to discuss it. 

Treading very carefully, and never saying that you want the employee to leave, you could volunteer that in return for signing a settlement agreement, the employee could receive a reference and financial compensation; but the employee should let you know what they would like to do. This may result in a successful managed exit.  

It’s a fine line to tread, so taking legal advice in these circumstances is generally advisable. You are also under a legal duty to ensure that, regardless of what you choose to do, the employee takes independent legal advice in these circumstances.  

If you are considering offering an employee financial compensation then you might be interested in our employer’s guide to settlement agreements. You can find it here and if you’d like to talk through your particular circumstances with one of our lawyers, get in touch for a friendly chat and a fixed quote.  

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