25 July 2014

How to fire someone

08:05, Philip Connolly and Adrian Weckler

How should you fire someone? In business, letting someone go is sometimes necessary. But for the person being fired or made redundant, it can be traumatic.

Here are tips for employers and small business owners on how to behave when and ten key points of employment law to keep in mind.

**HOW TO LET SOMEONE GO**

**1. Avoid a George Clooney-style “this is just next stage of your life, a great opportunity” approach** [from the film, ‘Up In The Air’]. Go in hard with the news. Put people out of their pain quickly.

**2. Hold the line when some people start to argue, plead or cry.** It may feel very uncomfortable, but you have to let them go through it.

**3. Do not try to justify your actions.** This is not a logical moment for the person you’re letting go, but an emotional one.

**4. Advise them of their financial entitlements.** Try to make their entitlements as tax-efficient as possible.

**5. Make sure to get keys, fobs, phones.**

**6. Assure them of a good reference.**

**7. Always bring a clean pack of hankies.**

**8. Check their address details and phone numbers.** This is important for when other companies’ HR people subsequently ring you for references about them. If you have it right, they don’t then have the extra hassle of ringing you to correct it.

**9. Never forget that this may be someone’s life and family welfare that you’re dealing with.**

*- As related by a senior manager in a large Irish retail chain.*

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**10 PRINCIPLES OF EMPLOYMENT LAW TO REMEMBER**

**1. Last in, first out?**

While not explicitly stated in law, the principle of ‘last in, first out’ is considered a fair way of deciding who to let go.

“It is considered not to be an attack on anybody who is selected,” said Dermot Casserly, partner and head of the Employment and Benefits Group at Beauchamps Solicitors. “Traditionally that is the reason why it has been used.”

**2. Time served**

If employee has not been with a business long, they may not be entitled to the same protection as long term staff.

“The key reference period is 12 months,” said Casserly. “Then an employee has legal protection under the unfair dismissal acts. There are exceptions, such as if an employee is pregnant or on equality grounds. You also need two years service to be entitled to any statutory redundancy lump sum.”

**3. Fixed term-contracts**

So what if an employee has a fixed 12-month contract? Are they entitled to the full sum or can you just cancel the contract? The answer depends on the contract.

“A contract may reserve the right to terminate on notice,” said Casserly. “The key point is what is contained in the contract. If you have a properly drafted contract the employer is protected. If the wording is not right, it is open to an employee to claim the balance. Also if an employee is on a fixed term contract for two years they may be entitled to redundancy.”

**4. It should be a consultation**

While the typical way redundancy is portrayed is a sombre meeting out of the blue, in reality it should be a consultation process.

“If an employee’s role looks like it's no longer required, an employer first has to advise the person that their role is at risk,” said Casserly. “As an employer you are required to act reasonably. You discuss with the employee why the role could be eliminated and ask them to put forward any suggestions they would like to make to protect their job.”

**5. Give alternative suggestions due consideration**

According to Casserly, the biggest mistake companies make is having their minds made up too soon. “The classic example is where they call an employee into a room and say they have to make them redundant,” he said. “They bypass the consultation procedure. The obligation for an employer is to take on board the employees proposals and give them proper consideration. They don’t have to accept it. What they have to do, and show, is to give it due consideration. You should then allow the employee to appeal that decision.” It is also good practice to allow an employee to have a work colleague or union person attend meetings with them, said Casserly.

**6. Selection criteria**

Beyond ‘last in, first out’, what criteria can a company use to let an employee go? While you may want to get rid of someone who keeps turning up late, it isn’t quite that simple.

“Usually you would interview employees under a certain criteria, which you give them,” said Casserly. “It might be their skills, experience or qualifications. I would advise against putting in criteria around disciplinary or performance record. You open yourself up to allegations. It can be hard to justify.”

**7. Know your obligations regarding pay**

For most businesses, redundancy will be a last resort due to financial issues. That still doesn't negate a responsibility toward staff being laid off.

“The payment is two weeks per year served plus a bonus week on top, capped at €600 per week,” said Patricia Callan, director of the Small Firms Association. “In budget 2012 the rebate system changed, so now employers only get 15 per cent back, rather than 60 per cent.”

**8. Voluntary redundancy**

While it may be preferable to give your staff the choice, often it may not be a workable solution for a business.

“You don’t have to offer voluntary redundancy,” said Callan. “If a company only has one person doing a job and or a few people in a section, it doesn't make sense to offer it across a broader spectrum.”

**9. Not a way to dismiss a poor performer**

“Now people factor a lot more in terms of people’s performance levels,” said Callan. “They can and should take that into account. But if they haven't tackled that through performance management systems or disciplinary processes you can't use redundancy as a guise for dismissal. The job for which the person was employed should no longer exist. You are not making a person redundant, it is literally the position is one that no longer exists.”

**10. Previous redundancies set a precedent**

“It is important for people to remember that previous redundancies set precedents,” said Callan. “The expectation will be there around what a redundancy package might look like. People don't want to fall into a habit of when a particular person is going they do a deal for them. It sets a precedent for the future.”

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