The right way to "let someone go"

HR36 · October 2007

If we have an employee who has performance issues (not well documented, unfortunately), and we are facing a staff reduction in his department, is it better to just let him go with the staff reduction being the stated reason? Or is it better to document his performance issues and include them in the stated reason for his termination? What would you do?

Thanks!

regdunlop · October 2007

i think you should be honest about the reason you are firing him. there's no reason to go into much detail but if you are not honest it might come back to bite you during litigation. you should have the documentation to back you up

LadyAnn · October 2007

I would be totally upfront with the employee. "We are having to reduce staff in your department and you were chosen because of xyz performance issues". Because your documentation is not what it should be and you are not giving the employee the opportunity to correct the performance issues, you need to plan on the employee being awarded unemployment insurance.

GoPatsNH · October 2007

I agree with the others. The best thing to do is to be honest. If you have a progressive discipline policy and you haven't followed it regarding this employee, you may want to do that - and give the employee the chance to redeem himself. But in the end, if he ends up suing you, and you change your story, it looks bad.

msomerville · October 2007

As long as the person's position was already included in the RIF, I think it is okay not to document the other issues because the RIF is not based on performance or lack thereof of the individual employee.

LadyAnn · October 2007

But a RIF is always based on something. It may be seniority or other criteria, and unless I am reading the initial post incorrectly, this particular RIF was based upon performance. Yes, it is okay not to document the other issues, but it is better to be clear about the criteria so that the employee doesn't assume that the RIF was based upon an illegal criteria (such as age, race, national origin, etc.)

TXHRGuy · November 2007

I try to avoid muddying the waters with mixed reasons or reasons that are poorly documented. When I fire a salesperson for a behavior related reason, their supervisor always wants to chime in with a performance issue. If the performance issue isn't the cause or a contributor to the termination, then I don't mention it in any termination documentation. My experience is that these "side notes" to the central cause of termination only make outside entities suspicious of pretext.

Would you normally fire someone for poorly documented or undocumented performance problems? If not, then I would simply tell the manager to document performance problems if they don't want poor performers on their team. A lot depends on how measurable this employee's performance is. If they do assembly line or sales work, you have hard numbers you can use to back a position on poor performance. If they do work that is more difficult to count or simply not-counted (e.g., who is the slowest packet colater in your office), then you are in an awkward position terming them for uncountable or uncounted poor performance that has never been brought to their attention or never escalated to the point of warning them that it was a very serious matter. That is especially true if it might be the case that other people are at the same performance level. There are so many things that can go bad:

The employee can claim they didn't know they were in trouble and that the termination was a pretext for something else such as illegal discrimination. The Company will have no evidence that the person was told they were performing poorly.
The employee can claim that others are at the same performance level and that the termination was a pretext for something else such as illegal discrimination. If the Company doesn't have similar performance measures on other employees doing similar work, it will be hard to support the claim that this person's work was different in any way from the others'.
The employees' friends and coworkers may not share the view that this person's performance is poor and, because it's not measured or not measured adequately, nobody will ever be able to convince them that the termination was fair. You can end up with morale/engagement problems and/or turnover.

Now, on the RIF side of things, what are the criteria for determining who gets separated and who does not? If your criteria clearly capture the person of interest, then RIF them for those reasons and for no others. If your criteria don't clearly capture the person of interest, then you are back in the position of contemplating the termination of employment for undocumented or poorly documented reasons.

The right way to "let someone go"

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