Fans of The Apprentice take note: Pointy finger accompanied by the pronouncement “You’re fired!” is purely for entertainment purposes.  Try that in real life and, as we all know, you’ll very quickly receive notice of unfair dismissal proceedings (where an employee is entitled to bring them) because, although you may think you’ve acted justifiably under the circumstances, your ex-employee knows that you now have to prove it.

Policies have a purpose

The first question you need to ask is, ‘Does the behaviour of my employee constitute gross misconduct sufficient to warrant dismissal?’

Your staff handbook will contain the guidance you need. Your employee’s signature on their employment contract is their written agreement to abide by the organisation’s policies.

Gross misconduct is a serious accusation to make and it’s important that you make yourself aware of the facts before you take action.  Theft or an obviously deliberate breach of confidentiality are easier to prove than bullying or harassment, where there are going to be two or more people party to the event.  Some employees would be quite shocked to hear that what they considered to be ‘teasing’ could be construed as harassment.

Have the evidence to hand

Investigate the event(s) quickly and invite the offending employee to a disciplinary meeting. Present the evidence from your investigation to them and ask whether they have a different version of the events in question.  If they are unable to refute the evidence then you have justification for summary dismissal.

Consider your process from a legal standpoint

If they show themselves to be ignorant of the effect they have had on those working with them, especially a complainant whom you know to be particularly vulnerable, either naturally or because of current circumstances, then their insensitivity may be regarded as mitigation for their behaviour. As a manager, it falls to you to decide whether they could present their case in such a way that summary dismissal will be considered too extreme a response under the circumstances. Your decision will be viewed from a legal standpoint and consideration given as to whether it was possible to manage the claimant’s behaviour by means of a warning accompanied by guidance on the behavioural changes they needed to make.

I can still dismiss poor performers though, can’t I?

Gross misconduct is, of course, the most dramatic employment event and managing the procedure, although not always simple, is the most straightforward.

Poor performance brings many different questions, such as adequate training, experience of the required tasks, leadership style and a change in personal circumstances.

You will need to examine the employee’s records to identify any training shortfalls and whether there has been a substantial change in their role. Perhaps the poor performance is related to an additional responsibility that distracts them from their primary function.

Before you come to any decision you will need to write to your employee to invite them to a meeting. If they have been with your organisation for less than two years they should be made aware that termination of employment is a possibility.

In the meeting, present your case in a non-confrontational manner and provide them with an opportunity to respond.

Once you have all of the facts you can make your decision, but there must also be an opportunity to appeal.

If the employee has been with you for longer than two years you must follow your full disciplinary procedure, provide time and resources to enable them to make any necessary improvements and schedule a review of progress after a ‘reasonable’ amount of time.

Record everything

It’s of paramount importance that you maintain detailed records of every action you take and of everything discussed during meetings.

If a decision to dismiss is inevitable, these records will support you in any ensuing dispute.