Dear Aunty,  

Our CEO wants to dismiss one of our managers as he has had enough of his incompetence.  He does not want to go through any process – he says that it will take too long and there is no point as we will end up paying him something to go away anyway. 

His plan is to take the manager to Starbucks, tell him that he is fired and then bring him back to the office to clear his desk.  I can’t change our CEO’s mind but what can I do?

Yours

Betty Messesup
HR Manager
 


Dear Betty

 

This is surprisingly common – although maybe not the Starbucks part.  The key is to do what you can beforehand to put the company in the best possible position in settlement negotiations:

  1. Work out the potential liability for the company
    This will be a relevant factor in any settlement negotiations.
    a. Contractual payments.  What is he due?  Is it clear or are there some grey areas?
    b. Tribunal compensation.  This is based primarily on lost earnings.  How long is he likely to be out of work?  Call a friendly head-hunter for their view if you do not know.
  2. Limit the damage
    Persuade your CEO to at least write to your manager to 1) set out the reasons why he is contemplating terminating his employment and 2) invite him to a meeting to discuss it.  Even if the meeting happens later the same day, you will have put the company in a better position because it can argue some kind of process was followed and, more importantly, you will have got the company’s reasons on record.  Failing to do so is almost inviting him to come up with an argument that there is some kind of discriminatory reason behind his dismissal.
  3. Do your homework
    a. Review any past appraisals.  Do these support the view that he is incompetent?  If so, refer to these in the letter.
    b. Has your CEO spoken to the manager about his incompetence?  If so, mention this in the letter.
    c. Consider for a moment whether the manager could do another role in the company.  Whilst this may be unlikely, it may help your negotiating position because showing that you have considered it will go a small way in helping you defend any unfair dismissal claim.
  4. Be careful with emails
    Remind your CEO that all documents and emails are disclosable in any later Tribunal proceedings unless they are legally privileged.  Be careful not to create any kind of unhelpful paper or email trail that will come back to haunt you.  It would be best to discuss your plans face to face or on the phone, at least initially. 
  5. Take advantage of legal privilege
    Emails between you and your employment lawyers are privileged and therefore will not be seen by any Tribunal.  Take advantage of this by getting your lawyers to do a health check on your letter and plans before you finalise them.
  6. Plan the day
    a. When and where will the meeting take place?  Starbucks could be embarrassing for both of them if things become heated.  Having it at the end of the day in a private meeting room would mean the discussion is out of sight and he can leave quietly, with some dignity and without any embarrassing confrontation. 
    b. Who will attend?  It would be helpful if you could attend so there is another witness for the company and so a note can be made.  The manager can bring a colleague if he wants.
    c. Will you also have an off the record “without prejudice” settlement discussion?  If so, think about the logistics of this.  Perhaps invite him into a separate room, after the dismissal, in order to make a clear distinction between what is on and off the record.  Have a summary of your offer or draft compromise agreement ready.
    d. IT and building access.  You may want to block these whilst the meeting is taking place.  Arrange this in advance.
    e. Dismissal letter.  Do a draft that you can finalise quickly after the meeting.
  7. Plan the aftermath
    a. What will you tell his team and clients?  Do you want to offer to make an agreed announcement as part of a settlement?  If you do not want to wait then usually it is best to keep any announcement brief and bland.
    b. If you do not make a settlement offer at the time of his dismissal, do you want to make one soon afterwards – or would it be better to wait until you have heard from him or his lawyer?
  8. Think about negotiation points
    Think about what matters to him.  Money is usually the main point, but rarely the only one and some points can be “easy-gives” for the company.  Will he be keen to have an agreed reference or an agreed announcement?  Will he want to keep his medical insurance cover or company car for as long as possible?  Think about when to put extras such as these on the table.

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