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Ask the Expert… Difficult Employees

Zoe 19 December 2013

JulianQ: I have a difficult employee and would like to end his employment. I am aware of legal procedures I need to go through before terminating his employment, but what can we do to exit the employee quickly?

Julian Yew, employment partner, Hotels & leisure group, Penningtons Manches LLP says: As of 29 July 2013, you can call an employee to attend a ‘pre-termination meeting’ if, for example, you are not happy with their conduct or performance. The discussions in this type of meeting cannot be used as evidence in any subsequent unfair dismissal proceedings so long as there is no ‘improper behaviour’ involved. An example of ‘improper behaviour’ is telling the employee that he will be dismissed if he does not accept the offer in the absence of any disciplinary process. Bullying, harassment, threats, physical assault, victimisation and discriminatory treatment will also constitute ‘improper behaviour’.

The proposed terms of severance should be set out in a Settlement Agreement and the employee must be given at least 10 calendar days to consider your written offer.

It is good practice to allow the employee to be accompanied by a colleague or trade union official to such a meeting although it is not a strict legal requirement. If you are going to discuss sensitive financial matters, it would be advisable to remind the companion of their duty of confidentiality or ask them to sign letter of confidentiality.

It is not entirely clear what you mean by a ‘difficult’ employee. Unfortunately, the above procedure cannot be used if the reason for the dismissal is due to whistleblowing, assertion of health and safety concerns and discriminatory treatment as these situations give rise to automatically unfair dismissal claims.

www.penningtons.co.uk