This week has seen a lot of publicity given to the idea floated that employers should be able to hire and fire employees on a no fault basis and fast and it will be interesting to see if this idea goes anywhere – we think not.
As things currently stand, one of the most common scenarios which both employer and employee clients bring to us is where there is an uneasy stand off in circumstances where the employer has decided that they want the employee to leave. The process which then tends to happen is given the term “managing out”.
This can mean the employer simply making life uncomfortable for the employee but this of course can create a number of risks, potentially involving the employee responding by being signed off due to illness through to claims for some kind of discrimination. The employee may choose to raise a grievance.
Managing out generally involves the employer, if they want to try and minimise the risk of an unfair dismissal claim, in starting disciplinary process and potentially then giving warnings – this process, possibly going through several phases of first warning, second or final warning, dismissal and appeal, can often take a number of months.
The whole issue of managing out is somewhat distasteful and obviously uncomfortable for both employer and employee. No business benefits from having a distinctly unhappy employee remaining in post for a number of months when it is clear the relationship of trust and confidence has broken down.
A possible solution to the above scenario is for the employer to offer a compromise agreement to the employee, to terminate the employment relationship with the employee agreeing to sign away any potential claims. The timing of such an offer is obviously important – the amount needs to be enough to induce the employee to agree and from the employer viewpoint it needs to be beneficial in terms of weighing up how long the process might otherwise take to manage the employee out with some safety legally and the other downsides of having the employee still in post in the interim.
Many employees come to us with a distinct suspicion that they are being managed out and frankly, on many occasions we are only able to add our own opinion that this is probably the case based on experience. Many are confused about what to do. We generally suggest that the employee rely on their own instinct – if they feel that their position at work is becoming untenable and the employer has not offered a compromise agreement, it is possible that we can help with an appropriate approach on the employee’s behalf. If the employee is still not sure whether the employer is indeed trying to manage him/her out, caution may be the better approach, since an employee suggesting a compromise agreement gives a clear signal that he or she feels things are untenable at work.
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