How to terminate an employee

Most employers would prefer to never fire an employee, but failure to terminate an employee who is not performing threatens the economic viability of any institution. It’s important to prepare for a termination with the same degree of care that you used when hiring an employee.

Here are 10 basic guidelines to follow when terminating an employee taken from Breaking up is hard to do, a Corporate Counsel Series presentation given in November 2002 by the law firm of Strasburger and Price:

1. Know what you are going to say. Rehearse what you’re going to say to an employee before beginning the termination process. Anticipate any difficult questions or reactions from the employee.
2. Think about how and where. It’s important to choose an appropriate location for delivering the bad news. Speak to the employee in a private place to try and alleviate any potential embarrassment or humiliation.
3. Be objective and honest. Honesty and objectivity will be appreciated most by the employee being fired. Making subjective or false statements during the course of a termination could become the basis of a lawsuit by the terminated employee.
4. Short and to the point. The termination is a painful exercise for both sides, so it’s in everyone’s best interest to get it over with. Get to the point as quickly and gently as possible.
5. Don’t argue. It is not unusual for an employee to object to being fired. Avoid engaging the employee in any discussion but stick to the fact that the employee is being terminated for a just reason. Once the reason has been given, it is not necessary to repeat the reason.
6. Don’t apologize. Apologizing to an employee for the termination can later be used as a basis to challenge the termination in court. The employee may argue that the apology meant the termination was unjustified.
7. Let the employee speak. Simply because you’re trying to make the encounter as brief as possible is not a reason to forbid the employee from speaking. Let the employee say a few sentences in response to the termination, but end the meeting if the employee insists on speaking at great length.
8. Keep notes. Keep a written record before, during, and after the termination process. The notes do not have to be lengthy or overly detailed but should reflect the salient facts of the termination: your investigation into the basis for firing the employee, any relevant statements made by the employee during the meeting, and your overall impressions of the employee’s demeanor and behavior during the termination.
9. Don’t blame someone else. You must assume responsibility for acts undertaken on behalf of your employing entity. If upper levels of management have set certain performance goals, you are responsible for achieving those goals, even if it means terminating an employee not performing to standards. Shifting blame to other managers in the organization opens up to the organization to a potential legal challenge.
10. Avoid benign references. It is important when giving out references for former employees to be as factual as possible. Any references that could be viewed as subjective, prejudicial, or discriminatory could form the basis of a lawsuit against the referring employer.

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