HR 2 August 2017

Why employers shouldn’t adopt Donald Trump’s firing technique

Anthony Scaramucci was sacked by Donald Trump after just ten days
Anthony Scaramucci was sacked by Donald Trump after just ten days

The US president may insist there is no turmoil, however it is hard to see anything getting done with constant White House shake-ups and rivalries.  Here, employment law expert Alan Price gives valuable advice to business owners with a penchant for frequent firings.

Eight tumultuous months into his administration, Donald Trump seems to be shaking up his White House staff again in the US, with the ousting of his chief of staff, Reince Priebus, and the removal of his director of communications, Anthony Scaramucci, just ten days after his appointment.

That move has only increased the sense of chaos at the heart of the Trump presidency. From an HR perspective, a high staff turnover and a culture of hiring and firing on a frequent basis can be disruptive to staff, and can reduce morale. What can the man who is synonymous with the phrase “you’re fired!” learn about a firing policy that’s correct and fair?

Be certain

The heat of the moment can cause business leaders – especially hot-headed ones like Trump – to make snap decisions that are neither correct nor rational.

Even if the business does have a zero-tolerance policy for certain behaviour, owners should check to see if employee’s actions fall into the parameters of the policy. When a business leader is angry, it is easy to unintentionally forget about guidelines and laws, and while the employee can come back after a mistake, no one will ever forget what happened and it could lead to an employment tribunal.

Since fees have been abolished, there is no deterrent against employees chancing their luck in front of a tribunal. Employers may now find a spur of the moment decision could lead to them facing an unfair dismissal claim, for which the compensation can be over £95,000.

Follow a fair procedure

The business may want to remove the employee straight away but the law lays down a clear procedure that must be followed.

The ACAS Code of Practice on Disciplinary and Grievance Procedures sets out the minimum process. A tribunal will consider whether the business has followed the code or not. A failure to apply the code can lead to a 25 per cent increase in any compensation award.

It is important to remember to follow any further dismissal process requirements included in the company handbook and disciplinary policy.

Give the right notice

The only dismissal that does not require notice is one for gross misconduct as this immediately ends the contract of employment. The notice given to an employee when they are dismissed is usually laid out in their contract.

In some circumstances, the statutory notice may override this. Statutory notice starts after one month’s service and increases at a rate of one week for each year of service up to a maximum of twelve weeks.

If this is greater than the contractual notice, then statutory notice must be given. Giving the employee the correct notice is a must, failure to do so can result in a claim for wrongful dismissal.

Keep a paper trail

It’s essential to keep written records of all matters that have been discussed with the employee including all letters and minutes of all meetings (signed and dated by everyone present). This is evidence to prove that a full and proper procedure has been followed and a fair decision-making process took place in case a dismissed employee takes the employer to a tribunal.

Even when employers conduct a full and thorough recruitment exercise, they may find themselves with an employee who’s underperforming and failing to meet the key requirements of their role.

The earlier the lack of capability is addressed, the easier this situation is to manage for employers. If the employee’s performance still doesn’t improve, the employer should examine whether there are any other roles suitable for the employee in the business before considering a dismissal.

Only if a fair procedure has been followed will a dismissal for capability be fair. Dismissing an employee is a usually a necessary but often unpleasant and difficult part of running a business, however the Trump administration is increasingly feeling like a reality TV show, in which someone gets voted out every single week.

Alan Price is employment law director at Peninsula

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