A few months ago, I was asked by a journalist how to fire an incompetent employee. I won’t name the journalist because I know what one unfavorable comment can do to a career. I also try not to shame people anymore, especially when they are genuinely trying to learn. We all have a lot to learn.
My mom often said that’s a good thing because when we figure it all out, we’re done here. She must have done that around February 2018.
For the rest of us still here and learning, you might notice that I changed the way the outgoing employee was labeled for this discussion. I knew what the journalist was trying to write about. But I’m a lawyer. I appreciate careful word choices that clearly convey the desired message. I saw this as a learning opportunity.
In law, “incompetent” typically means the person lacks mental capacity to handle personal responsibilities. We don’t typically talk about competence much in an employment setting, in part because employers are supposed to screen for competence before they hire.
Is it an employee’s fault that the employer fell for the sales pitch and failed to do its due diligence? Usually not unless they lied about having a required credential or license. Absent fraud, employers are typically held responsible for the actions of their employees. That should be reason enough to be careful how you toss around labels like incompetent. More importantly, if an employee has a mental disability, termination on that basis is unlawful discrimination.
Make sure there is no real or perceived mental disability influencing your decisions. If there are, reasonable accommodations must be explored first–and carefully, under the advice of legal counsel. Call your employment lawyer. (That is not me, unless you have explicitly engaged me for that purpose. Reading my blog post does not mean you got legal counsel from me. This is just general information about employee relations.)
After you’ve consulted your attorney about any relevant mental disability issues and confirmed you simply hired someone with a bad attitude about working for you and who does not get the required work done, it’s time to look at the specific issues causing your desire to terminate the employment.
Much like when a marriage or friendship ends, we often struggle to describe why it’s not working out. Is this employee a bad apple, with nothing redeemable and to the core? Probably not. Yet employees who don’t respect the organization or their coworkers can cause a lot of damage. You must do something before morale among the higher-performing employees is depleted.
The good news is that you’re likely in an employment at-will situation, unless you created an employment contract that gives the employee greater protection from termination. This is usually offered to executives and key employees who could cause great harm to the business if they leave. But most employees don’t have that protection. You can end the employment for no reason at all. So can the employee. As long as you don’t terminate an employee based on membership in a protected class, such as race, gender, or mental disability, you can send the employee packing immediately.
But before you send that termination letter, you would be wise to consider:
- How did you determine the employee does not respect the organization or their co-workers?
- What specific behaviors and incidents are you relying upon that support this determination?
- Could someone else interpret your decision as one based on biases about employees of similar gender, race, age, religion, mental capacity, etc.?
- Is there is a valid reason the employee is being disrespectful?
It’s expensive to hire, onboard, and train new employees, and it’s even more expensive to defend discrimination claims. Make sure you aren’t too quick to label someone wholly negative. That employee might have been subject to a bad experience at work, and that incident might not have been resolved yet. Or maybe the employee is otherwise struggling in ways that can be alleviated.
If after careful analysis, you’ve proven the employee does not produce the work necessary to justify continued employment–especially if you have evidence that the employee sabotages the work of others–keep the termination letter short and direct:
“Dear [First Name],
We both know this is not working out. Effective immediately, your employment with [Employer Name] is terminated. You might be eligible for unemployment insurance benefits while you look for a better fit. [Insert information likely required by state law.]
Best of luck for a future you love,”
If you can’t honestly wish the employee well and accept it just didn’t work out, there might be more driving the decision than you think. Go back through the considerations again. Discuss them confidentially with a trusted advisor who will give you objective feedback. This will help you avoid making a legal misstep when angry or overwhelmed.
Termination doesn’t have to be an ugly experience. It will still sting a little—and maybe a lot for the outgoing employee—but it can also be a very freeing experience that allows everyone to move on to situations more aligned with their values and aspirations.