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Employment contracts, policies and handbooks

Managing and negotiating employee exits

Exiting an employee is an unfortunate reality for most organisations. Whether this is driven by poor performance, restructuring, unacceptable conduct or interpersonal dynamics, the situation can be both stressful and complex. The process can also be time-consuming, while presenting a variety of challenging circumstances that can result in claims including unfair dismissal, if handled incorrectly.

If you’re faced with exiting an employee, it is imperative that you understand your legal position, both to protect your business and achieve the best possible outcome. Whether you’re looking for guidance on disciplinary procedures, settlement negotiations or Employment Tribunal claims, our team of expert employment lawyers and HR specialists are here to assist at any stage of the process.

“The speed of their service levels combined with high quality advice always exceeds our expectations and as a result we have been a satisfied client of the firm for over 7 years. I would not hesitate to recommend Loch Employment Law to any business.”

Operations Director, Professional Services

How Loch Employment Law can help

Whatever requirements you may have, our team of expert employment lawyers will work with you to ensure that a fair and reasonable procedure has been adhered to, while providing guidance on the best course of action at every step of the process. This may include:

  • Advice on how to manage negotiations, or conducting negotiations on your behalf (supported by our dedicated HR consultants at HR Advise Me)
  • Guidance on how to handle difficult conversions, including scripts
  • Drafting the structure of a settlement package for the best outcome
  • Drafting the documents for a settlement agreement
  • Guidance and support relating to protected characteristics (e.g. religion)
  • How to manage ‘off-the-record’ discussions and negotiations without fear that those negotiations will later be used in litigation

Loch Employment Law can also advise on the departure of senior individuals, including dealing with shareholders and other incentive arrangements.

Considerations when exiting an employee

Exits usually result from a breakdown in performance or interpersonal relationships, and reaching a mutually agreed (and hopefully amicable) settlement between all parties is usually preferable to pursuing litigation. However, regardless of whether an employee’s exit was initiated by the employer or the individual, they can only be dismissed when there is a fair reason to do so. These include:

  • Capability / performance
  • Redundancy
  • Conduct / misconduct
  • Statutory illegality
  • Some other substantial reason (SOSR) which is not covered by the four categories above, such as a personality clash between colleagues which cannot be resolved

An individual must have one year and 51 weeks continuous service to be eligible to bring an unfair dismissal claim. However, if dismissing an individual who has been employed for less time, employers must be aware that there is an array of potential claims that the individual may be able to bring, including discrimination, wrongful dismissal, whistleblowing and other deemed automatic unfair dismissal claims.

Therefore, if you’re looking to exit an executive or a member of staff with under two years’ employment, it’s important to carefully consider each scenario on a case-by-case basis. By understanding the various considerations and available options, you can minimise the risk and pain that is often involved in handling these delicate situations.

Contact us for advice

“The expertise of Loch Employment Law made me feel in very safe hands. Caroline was thorough at explaining the legal situation, giving clear advice and was committed to getting me a fair outcome”

Senior Professional

“Thanks for all your help. Very impressed how you pressed the negotiations forward on Wednesday to allow us to reach a quick resolution.”

App Developer

“Being a new employer can be very daunting but she gave me the confidence to forge ahead with the process always explaining things in a straight forward manner.”

Dave Mac, Employer