GetFive Merges Under Careerminds

Read more

How to Fire Someone: Fair Procedures When Terminating an Employee

January 02, 2024 by Cynthia Orduña

A document with a star on it.
Request Pricing

Compare our rates to other providers

Employee termination is one of the most challenging aspects of managing a workforce. Regardless of the reasons behind the decision, it’s crucial for organizations to approach terminations with fairness, sensitivity, and professionalism. This article aims to provide a comprehensive guide on how to fire someone, outlining the essential steps to ensure fair procedures and maintain dignity throughout the process.

You’ll learn:

  • How to fire someone legally
  • 7 steps to fair procedures when terminating an employee
  • Exactly what to say when you fire someone virtually or in-person
  • What you should never do when terminating an employee
New Call-to-action

How to Fire Someone Legally 

Firing someone legally involves adherence to employment laws and regulations to ensure that the termination process is fair, non-discriminatory, and compliant with relevant statutes. Let’s explore each of the key steps to consider when terminating an employee legally.

Understand Employment Contracts

Review the employment contract and any relevant documentation to understand the terms and conditions of employment, including notice periods, termination clauses, and any specific procedures outlined in the agreement.

Document Performance Issues

Maintain thorough and well-documented records of the employee’s performance issues or any behavior concerns. Having a clear history of performance-related discussions, warnings, or improvement plans can be crucial in demonstrating the legitimate reasons for termination.

Maintain Consistent Policies

Ensure that the termination decision is consistent with company policies and procedures. Treat all employees equally, and avoid discriminatory practices. Follow the established disciplinary process as outlined in the company handbook.

Review Applicable Employment Laws

Familiarize yourself with federal, state, and local employment laws that govern terminations. These laws may include regulations related to at-will employment, discrimination, retaliation, and any specific industry-related regulations.

Provide Notice or Pay in Lieu

If an employee warning notice is required based on employment contracts or labor laws, be sure to provide it within the stipulated notice period. Alternatively, you can offer payment in lieu of notice if allowed by law or employment agreements. For example, if an employee is entitled to a two-week notice period, but you prefer an immediate separation, you may choose to pay the employee for the equivalent of two weeks’ wages in lieu of the notice period. This provides financial compensation to the employee in place of the standard notice period.

Payment in lieu can also apply to other employment-related entitlements. For instance, an employee might be offered payment in lieu of unused vacation days upon termination. The use of payment in lieu ensures that you, as the employer, fulfill your legal obligations or contractual commitments to the employee, even if they don’t work the notice period or utilize certain benefits. It provides flexibility for both parties and allows for a smooth transition during the termination process.

Avoid Discrimination

Firing practices that are discriminatory violate federal law. Ensure that the termination decision is not based on any discriminatory factors like race, gender, age, religion, disability, or other protected characteristics such as:

Retaliation: Employees cannot be terminated for threatening lawsuits, whether related to the alleged discrimination, any workplace safety violations, or other reasons. Similarly, termination for non-compliance with illegal requests is also prohibited.

Immigration status: Firing an employee based on their immigration status is unlawful, as long as the employee is legally authorized to work in the United States.

The key here is to document all of the legitimate, non-discriminatory reasons for the termination. To learn more about what constitutes workplace discrimination, you can look at the Equal Employee Opportunity Commision (EEOC) laws and protections. 

Conduct a Fair Investigation

If the termination is based on misconduct or violation of company policies, conduct a fair and thorough investigation. Provide the employee with an opportunity to present their side of the story before making a final decision.

Consult with HR and Legal Advisors

Before terminating an employee, consult with your senior human resources professionals and legal advisors. They can provide guidance on compliance with employment laws, review termination documents, and help mitigate legal risks.

Be Transparent in Communication

Clearly communicate the reasons for the termination to the employee. Use specific examples and avoid vague or ambiguous language. Be prepared to discuss the decision in a professional and transparent manner.

Optional: Offer a Severance Package

In some cases, offering a severance package can be a gesture of goodwill and may also include a release of claims against the employer. Consult legal counsel when structuring and offering severance packages.

This might include outplacement services for additional support in the employee’s search for a new job placement. At Careerminds, we highly recommend including outplacement in your severance agreements to provide valuable support to your impacted employees while protecting your organization from wrongful termination lawsuits and damage to your brand.

In general, when considering how to fire someone legally, remember that employment laws vary by jurisdiction. So it’s crucial to seek legal advice specific to your location and industry. Additionally, maintaining open communication and treating employees with respect during the termination process can help minimize potential legal issues and foster a positive work environment.

How to Fire Someone Fairly in 7 Steps

Having gained insights into the legal aspects of employee termination, let’s delve into a comprehensive guide outlining seven steps for conducting fair termination procedures, including what to do, what to say, and what not to say when firing someone with dignity. This guide will also provide scripts for what to say when you fire someone that can be utilized in both virtual and in-person termination scenarios.

1. Conduct a Thorough Review

The very first step when navigating how to terminate an employee, before making the decision to terminate, is to conduct a thorough investigation of the employee’s performance, behavior, and any mitigating circumstances. 

Consider gathering input from the employee’s supervisors, colleagues, and other relevant stakeholders to ensure a comprehensive understanding of the situation. This will be crucial both for making a fair decision and for the clear communication of that decision, which segues nicely into the next step.

2. Schedule a Private Meeting

When it comes time to terminate an employee, and communicate that decision to them, make sure that the conversation takes place in a private and confidential setting. This helps ensure clear communication and comprehension, protects the employee’s dignity, and avoids unnecessary embarrassment. 

To do this, schedule the meeting at a time when it won’t disrupt the workplace. Book a private room and give the employee ample notice to clear their schedule and workload, so they can be as present and undistracted in the meeting as possible.

3. What to Say When Terminating an Employee

Address the termination with clarity, empathy, and professionalism. Start the conversation by expressing gratitude for the employee’s contributions, acknowledge positive aspects of their work, and clearly communicate the reasons for the termination with specific examples. 

To support you further in this process, we’ve added a detailed short script for firing someone below. You can use this as an example of what to say when you fire someone at your organization. Feel free to customize this script to fit the specifics of the situation and concerns with your employee.

How to Fire Someone Script

“I appreciate you taking the time to meet with me today. Before we delve into our discussion, I want to express my sincere gratitude for your contributions to the team and the company as a whole. Your hard work and dedication have not gone unnoticed, and we value the effort you’ve put into your role here.

I’d like to acknowledge the positive aspects of your work—your commitment to the job, your collaboration with colleagues, and the skills you brought to the team. Your contributions have been instrumental, and we recognize the impact you’ve made during your time with us.

Now, I believe in open and transparent communication, and it’s important for me to address some concerns that have arisen. Over the past few months, there have been instances where project deadlines were not met, impacting overall team efficiency. For example, the recent project experienced delays that affected the entire team’s workflow, resulting in additional stress and overtime for others.

I also want to reference [insert a specific incident] where communication breakdowns occurred, leading to misunderstandings among team members. Despite our efforts to address these issues through feedback and coaching, we haven’t seen the improvement we were hoping for.

It’s essential for us to maintain a high standard of performance and collaboration within the team. So, after careful consideration, we’ve come to the difficult decision that we need to part ways. This is not a reflection of your character or potential, but rather a recognition that the current role may not be the best fit for both parties.

We understand that this news may be difficult to hear, and we want to provide support during this transition. We have a comprehensive exit plan in place, including [details of severance packages or assistance finding a new job such as an outplacement program], and we are here to answer any questions you may have.

Please know that your contributions have been valued, and we wish you the very best in your future endeavors. If there’s anything specific you would like to discuss or if you have questions about the transition process, I’m here to assist.”

Remember, the tone and content of this script may vary based on the circumstances and the individual involved. It’s crucial to approach the conversation with empathy and professionalism, providing an opportunity for the employee to express their thoughts and concerns. So take this example script as a general guideline for what to say when you fire someone, and feel free to make it your own.

4. How to Fire Someone Over the Phone

Firing someone over the phone is generally not the ideal method, as it lacks the personal touch and sensitivity of a face-to-face interaction. However, there are situations–such as remote work arrangements or logistical constraints–where terminating an employee over the phone may be necessary. If you find yourself in this position, and need to know how to fire someone over text or a phone call, remember to approach the conversation with the utmost care and professionalism.

Steps for Conducting a Termination Over the Phone

Choose the right time: Schedule the call at a time when the employee can have privacy and won’t be caught off guard. Avoid Mondays or Fridays and choose a time that allows them some space to process the information.

Set the tone early: Begin the conversation by expressing that there’s an important matter to discuss. This sets the stage for the seriousness of the conversation.

Listen to their response: Allow the employee to respond and express their thoughts or concerns. Be empathetic and listen actively without interrupting.

Offer support: Provide information on any available support services, such as severance packages, outplacement assistance, or guidance on next steps.

Address logistics: Discuss logistical details, such as the return of company property, final paychecks, and any necessary paperwork, to ensure a smooth transition.

Follow up in writing: After the call, send a follow-up email or letter reiterating the key points discussed during the conversation. This provides a written record and clarity on the termination.

Best Practices for Phone Terminations

Choose video calls when possible: If feasible, opt for video calls to allow for a more personal interaction and better understanding. Facial expressions and body language can help convey empathy and sincerity, and lend to clearer communication.

Maintain confidentiality: Ensure that the call is conducted in a private and confidential setting to protect the employee’s dignity.

Be prepared for reactions: Understand that emotions may run high, and the employee may have questions or reactions. Be prepared to handle these with patience and empathy.

Seek legal advice: Consult with legal counsel to ensure compliance with employment laws and regulations regarding remote terminations.

While terminating an employee in a phone call is not ideal, following these guidelines on how to fire someone over the phone can help make the process as respectful and professional as possible. Always strive to preserve the employee’s dignity and provide the necessary support during this challenging time.

5. What Not to Say When Firing Someone

When discussing how to terminate an employee, it’s equally important to remember what not to do. Avoid using insensitive or hurtful language throughout the termination process. Refrain from making personal attacks or providing excessive details that may cause unnecessary emotional distress. 

Instead, you want to focus on the specific reasons for the termination and the company’s decision, as well as what support you will be providing them, such as severance packages and outplacement services.

Here are short script examples of what not to say and terms to avoid when navigating how to terminate an employee.

Insensitive Language

Instead of saying: “Your performance has been terrible, and you’re clearly not cut out for this role.”

Try saying: “We’ve observed challenges in meeting performance expectations, which have led to our decision.”

Personal Attacks

Instead of saying: “You’re lazy and unproductive; you’ve been a burden on the team.”

Try saying: “There have been difficulties in achieving the level of productivity needed for the team’s success.”

Excessive Details

Instead of saying: “Your colleagues have complained about your attitude, and there have been numerous complaints about your behavior.”

Try saying: “We’ve received feedback on interpersonal dynamics that have affected team cohesion.”

Blame-Shifting

Instead of saying: “This is entirely your fault; you’ve caused many problems.”

Try saying: “We’ve encountered challenges in achieving the desired outcomes, and we need to make adjustments.”

Unnecessary Criticism

Instead of saying: “Your work has been consistently subpar, and your ideas are always off the mark.”

Try saying: “There have been concerns about aligning your work with the team’s goals and expectations.”

Judgmental Language

Instead of saying: “You’re just not a good fit for our company; you don’t fit in here.”

Try saying: “We believe that our current organizational needs may require a different skill set.”

Empty Promises

Instead of saying: “We might reconsider if you promise to improve immediately.”

Try saying: “We’ve made a decision based on the current circumstances, and we are committed to supporting your transition.”

Comparisons to Colleagues

Instead of saying: “You’re not performing as well as your colleagues; they’re all surpassing your efforts.”

Try saying: “Each team member contributes uniquely, and we’ve identified areas where adjustments are necessary.”

Overemphasis on Individual Failures

Instead of saying: “You’ve let everyone down with your mistakes.”

Try saying: “We’ve encountered challenges that require a reassessment of our team dynamics.”

Lack of Empathy

Instead of saying: “You should have seen this coming; you’ve been given enough chances.”

Try saying: “We understand this is a difficult situation, and we’re here to support you through the transition.”

Remember, the goal is to communicate the decision with empathy, focusing on the specific reasons for the termination without causing unnecessary emotional distress. Use neutral and constructive language to maintain a respectful and professional tone throughout the conversation.

6. Handling an Emotionally Unstable Employee

If you suspect an employee is emotionally unstable, and might be at risk of taking the news with particular difficulty, you will want to approach the termination with extra care. This is important to both provide the employee with support and respect, and protect the organization from possible retaliation or damage to company culture.

One way to do this is to consider having an additional support person present in the meeting, such as a human resources representative or counselor, to provide the employee with more assistance and resources. Ensure that the employee has access to any necessary support services that will help them navigate the termination process with healthy boundaries and minimal stress.

7. What Should You Never Do When Terminating an Employee

Lastly, there are several actions companies should avoid when navigating how to terminate an employee. As we’ve covered in the steps above, you should never terminate an employee without compiling clear documentation, providing a valid reason for the termination, or following established policies and procedures. It’s also crucial to avoid sharing sensitive information about the termination with any unauthorized individuals.

Let’s review the most important examples of these mistakes to avoid in the process of how to fire someone.

Terminating Without Clear Documentation

Mistake: Firing an employee without compiling and maintaining clear documentation of their performance issues or violations of company policies.

Example: If an employee is terminated without any documented instances of poor performance or policy violations, this leaves the termination decision unsupported by a factual basis and opens the door for an unlawful termination lawsuit

Failure to Provide a Valid Reason

Mistake: Dismissing an employee without providing a specific and legitimate reason for the termination.

Example: If an employee is let go without being informed about the exact performance issues or behavioral concerns that led to their termination, it can lead to confusion and potential legal challenges.

Neglecting Established Policies and Procedures

Mistake: Ignoring the company’s established policies and procedures–as well as any relevant federal, state, or local policies–for employee termination.

Example: If a company has a formal process for issuing warnings or conducting performance improvement plans before termination, not to mention if there are any applicable federal or state policies, neglecting these steps could lead to accusations of unfair treatment and procedural violations.

Sharing Sensitive Information with Unauthorized Individuals

Mistake: Disclosing confidential details about an employee’s termination to individuals who do not have the authority or need to know.

Example: Sharing information about the termination, including personal or sensitive details, with colleagues who are not directly involved in the termination process can lead to breaches of privacy and potential legal consequences.

Displaying Unprofessional Conduct

Mistake: Behaving in an unprofessional or disrespectful manner during the termination process.

Example: Using derogatory language, raising one’s voice, or making personal attacks on the employee during the termination process is unprofessional and can contribute to a hostile work environment.

Firing in Retaliation

Mistake: Retaliating against an employee for filing complaints or raising concerns about workplace issues.

Example: Terminating an employee shortly after they have filed a complaint about workplace harassment or safety concerns can be perceived as retaliation and may lead to legal consequences.

Making Promises You Can’t Keep

Mistake: Making any promises or commitments to the impacted employee that cannot be fulfilled.

Example: Assuring an employee of continued support or a positive reference in the future, only to renege on these promises, damages trust and may lead to legal disputes.

These are all key examples of what not to do when handling how to terminate an employee. By avoiding these mistakes and handling terminations with professionalism, transparency, and adherence to established protocols, organizations can minimize legal risks and maintain a fair and respectful workplace culture.

How to Fire Someone: Key Takeaways

Navigating how to terminate an employee requires a delicate balance of professionalism, empathy, and adherence to established procedures. By following these key takeaways, you can ensure a fair and respectful process that not only protects the company’s interests, but also upholds the dignity and well-being of the departing employee. 

Employee Termination Best Practices

Legal compliance:

  • Adhering to employment laws is crucial for fair and legal terminations.
  • Understanding employment contracts, documenting performance issues, and consistency in policies are key steps.

Avoiding discrimination:

  • Discrimination, retaliation, and termination based on immigration status are illegal and must be avoided.
  • Fair investigations, transparency in communication, and consultation with HR and legal advisors helps ensure compliance.

Handling phone terminations:

  • Firing someone over the phone, while not ideal, requires careful consideration and professionalism.
  • Choosing the right time, expressing empathy, and maintaining confidentiality are essential for respectful phone terminations.

Communication dos and don’ts:

  • What to say when you fire someone includes expressing gratitude, addressing specific issues, and offering support.
  • Learn what not to say when firing someone in terms of insensitive language, personal attacks, and excessive details regarding the termination.

Emotionally unstable employees:

  • Terminating emotionally unstable employees requires extra care and may involve having an additional support person present.
  • Making the extra effort to support more emotional employees will help minimize their distress while protecting the company’s interests.

Common mistakes to avoid:

  • Never terminate without presenting clear documentation, providing a valid reason, or following established policies.
  • Avoiding unprofessional conduct and sharing sensitive information with unauthorized individuals is critical.

Consideration for severance packages:

  • Offering a severance package, especially one including outplacement support, can be a valuable goodwill gesture and may include a release of claims against the employer.
  • Consultation with legal counsel is advisable when structuring and offering severance packages.

Thorough review before termination:

  • Conducting a thorough investigation of an employee’s performance, behavior, and mitigating circumstances before making a termination decision is essential.
  • Gathering input from relevant stakeholders ensures a comprehensive understanding of the situation.

Private and confidential termination meetings:

  • Scheduling termination meetings in a private and confidential setting protects the employee’s dignity and avoids unnecessary embarrassment.
  • Timing and location should be chosen to minimize disruption in the workplace.

Follow-up in writing:

  • Sending a follow-up email or letter after a termination meeting, especially if by phone call, provides a written record and clarity on the termination details.
  • Reiterating key points discussed during the termination meeting helps avoid misunderstandings.

Remember, fostering a positive workplace culture extends through and beyond the termination process, and will ultimately contribute to a healthy and supportive work environment for everyone. So keep these best practices in mind when exploring how to fire someone legally and fairly in your organization.

Here at Careerminds, we can help you navigate that critical termination process by providing your impacted employees with our industry-leading outplacement services as they search for a new, fulfilling job placement.

If you’re ready to learn more, click below to speak with our experts and see if Careerminds is the right outplacement partner for your organization.
Speak with an Outplacement Expert

Cynthia Orduña

Cynthia Orduña

Cynthia Orduña is a Career and Business Coach with a background in recruiting, human resources, and diversity, equity, and inclusion. She has helped 50+ companies around the world hire and retain talent in cities like LA, SF, NY, Berlin, Tokyo, Sydney, and London. She has also coached over 300 people, from entry to senior levels, in developing their one-of-a-kind career paths, Her work has been featured in publications such as Business Insider, The Balance Careers, The Zoe Report, and more. To learn more you can connect with Cynthia on LinkedIn.

In need of outplacement assistance?

At Careerminds, we care about people first. That’s why we offer personalized talent management solutions for every level at lower costs, globally.

Speak with an Expert

Log In Contact Us