Involuntary termination
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CloseDealing with poor conduct and performance, dismissal and redundancy.
Whilst most departures are voluntary, in some instances employees may need to be dismissed (sacked) because of:
Capability
Capability falls into two categories:
- job related performance issues - this relates to skill and aptitude and should be managed if an employee is demonstrating an inability to achieve and consistently maintain the required standards set by the company for the position for which they are employed.
- health related performance issues – where the employee is unable to perform to the required standard due to ill health.
Further information on dismissal on capability grounds (Business Link).
Conduct or performance
When an employee is not meeting the required standard for the job, a line manager may need to closely manage their performance. The difference between capability and performance management is that the later aims to improve performance whereas with capability the employee has demonstrated that they are not for whatever reason “capable” of performing to the required standard.
Further information on dismissal on conduct grounds (Business Link).
Dealing with capability and conduct
To manage both capability and low performance you should have a set disciplinary procedure which should incorporate the following principles:
- all employees should be given the right to have concerns explained to them and an opportunity to redress those concerns
- all concerns should be thoroughly investigated
- if appropriate the employee should be given a chance to improve with clear objectives and guidelines for improvement
- no disciplinary action will be taken without the employee knowing the case against them and having an opportunity to give their version of events at a disciplinary hearing
- employees have the right to be accompanied by a fellow employee or trade union official at the disciplinary hearing
- employees have a right to a fair and impartial appeal against any disciplinary action and again have a right to be accompanied at the appeal hearing.
The aim is to achieve an improvement in performance or conduct and to avoid the necessity of further action being taken (ie terminating their contract).
More information about disciplinary procedures (DirectGov)
Redundancy
Redundancy is a potentially ‘fair’ reason for dismissal. However, the cause of the redundancy must fall within the legal definition of redundancy. The company must also be able to demonstrate that it has acted reasonably.
For redundancy to be a genuine reason for dismissal the situation must be one in which the company needs to:
- reduce its workforce
- the workplace is closing down
- employ (or expect to employ) fewer staff for work of a particular kind.
In the case where the employer has ceased or intends to cease:
- carrying on business for the purposes of which the employee was employed
- carrying on business in the place where the employee was employed
OR
- The fact that the requirements of the business:
- for employees to carry out work of a particular kind, or;
- for employees to carry out work of a particular kind in the place where the employee was employed by the employer have ceased or diminished or are expected to cease or diminish.
Reference: section 139 Employment Rights Act 1996
Avoiding redundancies
Steps should be taken to avoid redundancies. You should consider whether there are other ways of achieving the objective and whether some or all of the following are appropriate:
- a reduction in hours where jobs would accommodate part-time working
- sabbaticals, term time contracts, and unpaid holiday
- individual requests for voluntary redundancy - the company may still reserve the right to accept or reject volunteers
- individual requests for early retirement
- minimising the recruitment of temporary employees or short-term contracts
- reduction in overtime.
More information on redundancy from BERR (Department for Business Enterprise and Regulatory Reform).
Managing change
One of the biggest issues surrounding involuntary termination is how to manage the emotions and reactions of people. The managing change section of this website contains more information on how to do this.
Have your say
Can a member of staff's performance be improved? What experience have you had in managing involuntary terminations?
Talk to others on the managing staff forum.
- disciplinary
- how to take action
- suspension of an employee
- redundancy
- disciplinary hearing
- hearing outcome
- appeal
