Terminating an Employee: How Do I Deliver the Message?

The termination of an employee requires careful consideration of business and legal issues. There are various legitimate reasons as to why companies terminate employees including, but not limited to, misrepresentation of experience, education, or qualifications; inadequate job performance; violation of work rules or employer policy; unexcused absences and excessive tardiness; or a reorganization or other significant change eliminates a position or results in a layoff or reduction in force.

You may recall one of our earlier discussions, which focused on the process behind the decision to terminate, including the importance of documenting performance problems. Once the decision to terminate has been made, however, employers face the risk of defending claims against former employees alleging that their employment was terminated for an unlawful reason. Whether or not they have merit, wrongful discharge claims can result in lengthy and expensive legal battles, adverse publicity and damage morale in the remaining workplace.

Solution: Establish Legitimate Reasons for Termination and Deliver the Message Appropriately.

Prior to delivering the termination message, employers should ensure that all resources relevant to the termination have been assembled and assessed. Any performance reviews or disciplinary records should be fully reviewed to ensure that the termination message is clear, consistent, and supported by written record. When delivering the termination message, employers should be mindful of the following guidelines:

• Time the decision to allow for privacy: The actual termination meeting should be planned to occur at a time when there will be few interruptions.
• Prepare for delivering the message: The message to the employee should be well prepared; a written outline can help ensure that the employer fully explains important points.
• Have a witness: Invite an additional member of management to assist in note taking and to act as a witness to any comments or questions that arise during the meeting.
• Be direct: Ensure that the employee understands that employment has been terminated. Do not make excuses or minimize the reason for the decision.
• Do not interject personal statements: Be sensitive to the employee’s feelings without agreeing that the employer has made a mistake. Avoid comments such as, “this is not my decision” and “I would not had fired you if the decision had been mine.” These types of comments may encourage litigation by highlighting inconsistency in the employer’s motive.
• Outline the status of available employee benefits and discuss references: Briefly explain any benefits to which the individual is entitled and discuss the type of reference, if any that will be provided to the employee.

Lastly, it is important to remember that termination is a difficult and emotional matter. If an employer exhibits fairness and professionalism during the termination process, it can not only help to minimize chances that the employee will sue, but also, it can help to support the employer’s position that it acted fairly and reasonably in its decision-making process to terminate. Proper training of managers, supervisors and/or human resources personnel who may be involved in the termination can also help to reduce liability exposure for employers by ensuring that best practices are being consistently followed.

Should you have any specific questions regarding the termination process, please feel free to contact our office directly.