“Advice for those getting fired: ‘Stay calm, shut up and listen'”: This is the title of a recent article by Debra Cassens Weiss published in the American Bar Association Journal. Weiss’s article advises employees, “A smart employee will keep emotions in check and will try to use [the termination] meeting to get details on why they are being terminated.” It tells employees to document what happens in the termination meeting because those “records will be very valuable if they end up talking to a lawyer later on.” (Read the entire article here: http://www.abajournal.com/news/article/advice_for_those_getting_axed_stay_calm_shut_up_and_listen/). This is certainly great advice to employees who are getting bad news; but it is also a firm reminder to employers who are delivering the news – what you say in a termination meeting matters. Many employers view the termination meeting with a dread that cannot even be compared to that for the dentist chair. I know many human resources managers who have reported lost nights of sleep and upset stomachs at the thought of having to terminate the employment of a long-term employee or even a friend. While nothing can completely alleviate the stress of the termination meeting, remembering five important points can make you feel more prepared and less anxious when closing the conference room door.
1. Choose the right witness. Every termination meeting should contain at least three people: the employee being terminated, the employer representative delivering the message, and an employer witness. Choosing the employer witness is an important piece for the termination meeting. The witness should not be someone who is going to speak during the meeting. The witness’s role is to remain calm, document what is said if necessary, and be able to testify to what is said should the need arise. Having a witness who has been directly involved in the employee’s performance or conduct issues or who will be seen by the employee as someone who is glad the termination is occurring will only antagonize the situation. The witness would ideally be someone who will be seen by the employee as a friendly or trustworthy face who can bring an element of calm and credibility to the message. In the alternative, the witness can be someone with whom the employee has had little contact. The witness should also be someone the employer can trust not to discuss the termination with other employees and to report the events of the meeting honestly and accurately.
2. Plan what you will say to the employee before you go into the meeting. You may be nervous or anxious when entering a termination meeting. As a result, you may be tempted to give more information than necessary or try to “sugar-coat” the message in a way that isn’t accurate. Especially if the employee is visibly upset, your instinct may well be to try to comfort the employee by downplaying the behavior that has led to the termination. Such statements can come back to bite you later in litigation. By planning what you will say ahead of time, you will be less likely to stray from the message based on the employee’s reaction.
3. Less is more. Often, especially in a performance-related termination, the reasons for the termination are varied and could not possibly be articulated completely and accurately by one individual. DON’T TRY! Where the reason for the termination is clear and focused on policy, such as too many absences in violation of the attendance policy or a violation of the safety policy, you can state the reason for the termination, but you do not need to elaborate. If the reason for the termination is performance-related and has several factors, a simple statement such as: “As you know, we have discussed performance issues in the past. Based on your recent performance, the company has decided to terminate your employment” is enough. Likewise, I also often advise employers against putting a reason for termination in a termination letter to the employee if the reasons are many. If you put a reason in writing to the employee, you are likely to be stuck with that reason throughout a litigation related to the termination. So, unless the reason is completely clear, don’t put it in the termination letter. A termination letter simply stating the employee’s employment has been terminated and the date is sufficient.
4. Don’t argue with the employee. Be firm that the company’s decision is final. Do not engage in an argument or prolonged discussion with the employee about the reasons or the employee’s excuses. In doing so, you are more likely to say something you do not intend or that can be misconstrued in litigation. Also, unless you are going to change your mind about the termination, the employee is only going to become more frustrated and upset by any such discussion, which is not good for either party. Note, however, if the employee, in the course of the meeting, brings up claims of harassment or discrimination, you are not absolved of your duty to investigate those claims just because you are terminating the employee. Depending upon the claim, you may choose to suspend the employee without pay while you investigate any such claims. If you receive a complaint of harassment or discrimination during a termination meeting, I would advise you to consult legal counsel prior to completing the termination.
5. Focus on the future. After you deliver the news that the employee’s employment is terminated, focus on the effect on benefits, how the employee signs up for COBRA or other benefit continuation coverage, any severance being offered, job placement opportunities and other details that quickly move the employee off of the termination and toward thinking about the future. An employee who moves on quickly is less likely to bring a lawsuit than one who is unable to move past the reasons for termination.
While terminating an employee is seldom easy and can be incredibly gut-wrenching, following these five pointers will make the termination meeting less of a daunting task.