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I have an employee who has become very lazy and not pulling their weight. He has been working with us for 2 years now, I think it's personal problems, but he refuses to talk to me about it - when approached he became extremely angry.

I've tried talking to him but he's one of those who wont listen and tries to threaten all sorts of legal action etc.

So, as he is basically useless and dragging everyone down around him, how can I as his employer best sack him, without getting dragged into lawsuits etc etc? And without it costing me? as I refuse to pay him any longer, or any severance.

  • I'm assuming you are his boss/manager and you have the appropriate authority to hire/fire people? If so, just tell him goodbye and he's no longer welcomed. I'm sure he'll try something but ultimately if he's a underperformer, you should have no issue with any lawsuit from him. – Dan Oct 6 '16 at 18:27
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    Have you been documenting his poor performance? Have you given him any official notification that his performance is unacceptable? – brhans Oct 6 '16 at 18:28
  • Yes I own the company - he is the first person who ive ever had this situation with so im understandably nervous about how to get rid of him without a legal backlash. I have been keeping notes about his obvious underperformance yes – Alan Partridge Oct 6 '16 at 18:29
  • Yes I have talked to him several times, I tried a "nice informal" chat but he got all agitated. – Alan Partridge Oct 6 '16 at 18:30
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    This isn't the place to be asking for legal advice. Get legal help. – user8365 Oct 6 '16 at 19:57
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You've left this too late. There is no cheap or risk-free option. If they are serious about defending their rights and not just throwing idle threats around, then you could end up paying an awful lot of money.

  • The employee has been underperforming and you have not properly addressed this matter, you've declined give him warnings, and relied on 'informal chat'. There's a right way to go about things and you haven't done it. Under UK law, you don't get to opt out of giving people a fair hearing (even angry, lazy people) just because you don't want to - it's what you sign up to implicitly as an employer.
  • The employee has two years' service, which means they're entitled to claim unfair dismissal if you don't follow a fair procedure, e.g. as laid out in the ACAS Code of Practice. Don't try to sack him just beforehand if you discover he has only 23 months, tribunals can see through that and have wiggle room.
  • You are already vulnerable to a claim in an employment tribunal if you dismiss him, as you have clearly already made up your mind, and any procedure you now enter into is probably a sham. You might manage to get an external HR company to help organise a fair hearing; they may well advise you to hand over the decision to a third party. It's rare that this happens; and you'll need to be willing to accept the decision, which may well fall short of dismissal.
  • More likely, you will probably want to offer a settlement agreement (previously known as a compromise agreement). Again, you absolutely must get someone level-headed and uninvolved to do it who knows their stuff, as doing it wrong would lay you open to a claim. An external HR company would do it, and ACAS or the FSB might be able to advise you. If your priority is to get him out the door, that will cost more: ask yourself, how much you'd pay to not have to deal with the hassle any more - that's your offer. If he's really as bad and litigious as you say, that's probably quite a lot. Don't assume the employee will accept the offer. You need to be ready to deal with the fallout if they don't.
  • Even if you rashly fire him on the spot and risk a claim, you will almost certainly need to budget for paying the notice period, which would be a minimum of two weeks, plus any unspent holiday, etc.

Without knowing what the employee might claim should you dismiss it's impossible to give more specific suggestions or any idea of the strength or size of a claim; in any case, we can't give legal advice on this site. Ask an expert without delay and be prepared to pay for it.

Even if this particular employment relationship is unsalvageable, try to think through this from the employee's point of view when you handle situations like this in the future.

They probably don't know you're planning to fire them, or that that's even remotely likely. They probably just think you occasionally want to vent your own anger by having a go at them, and that there's no problem at all. They certainly haven't been given the time and opportunity to get their own expert help in (e.g. their union rep) to help repair the situation, understand what needs to change etc. Now some people might not want to engage with a process - that's fine, but you don't know until you try.

All your employees need to know about problems as soon as they happen so they can make a difference for both your sake and theirs. And all your employees need to feel confident they're doing well, not just that you're just avoiding having the difficult conversations with them. Finally, when you bring in a replacement, set standards, review with them what has and hasn't been met early on. The earlier you address problems, the better.

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    This is a terrific answer. Just one thing to add, as the poster indicates, be prepared to pay for legal expertise. However, also remember that there are plenty of hidden costs when dealing with an unruly employee, it's a terrific way to lose talent as well... – ewitkows Oct 6 '16 at 21:02
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    @DigitalLightcraft There is protection for employers who are conscious of the law and act fairly and reasonably when dismissing staff. I'm sure you're aware that running a business is a serious responsibility. Read this guide on gov.uk and tbh get professional help. – Nathan Cooper Oct 6 '16 at 22:06
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    @DigitalLightcraft If you indeed refuse to pay appropriate expenses relating to legal process, please prepare to get sued into the floor and potentially face personal penalties beyond the protection of your limited liability if you are found to be acting with malice or gross negligence. – Vality Oct 6 '16 at 22:57
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Im assuming that you you're a small company and don't have a HR person on staff. I'd strongly recommend contacting an independent HR person, and let them handle the entire process. Yes - it will cost you some money, but at least you'll be paying it to a useful person.

Never have any meetings with this person alone from now on (the HR person will again be useful here). Have a list of points you need to make on paper, and don't get dragged into arguments. (of course, if he hits you, it's grounds for instant dismissal).

In any normal situation, I'd suggest find out what his problems are, and see if the company can help him through them; but you've tried that, and he's rejected it. The only answer is to fire him. He's threatened legal action - let him. Even give him some lawyers phone numbers. But your HR person will make sure that you're bulletproof.

Your remaining staff will appreciate you handling this toxic person quickly and efficiently.

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    Good advice - thank you! I'll try to contact a local HR specialist immediately. It may cost, but less than his salary for the next X months!!!! – Alan Partridge Oct 6 '16 at 18:40
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    Instead of focusing on personal reasons, focus on the employee's duties at work. I don't know if the UK has the American equivalent of the American with Disabilities Act, but firing someone based with a documented medical reason would put liability on your company. – Frank FYC Oct 6 '16 at 19:09
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    +1 for "Your remaining staff will appreciate you handling this toxic person quickly and efficiently." You can't overestimate how bad it is for everyone else's morale if they see a team member not doing their job and not experiencing any consequences for it. It's absolutely worth paying severance/legal fees/contracted HR person to fix this before your good employees leave. – Mel Reams Oct 6 '16 at 19:12
  • @BobtheBuilder I'm pretty sure hiring an independent HR specialist would cover that angle ;) – Doktor J Oct 6 '16 at 20:24

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