Pre-termination negotiations, introduced into UK law on 29 July 2013, have given line managers more flexibility to terminate employees’ employment where they aren’t working out. Line managers can make an offer to an employee to end his or her employment on agreed terms without the employee being able to use the discussion as evidence in a claim for unfair dismissal.
This has the potential to be a great time- and money-saving tool, as it could avoid the need for lengthy capability proceedings or disciplinary proceedings. However, line managers should be fully up to date with the legal requirements and good practice before attempting to hold pre-termination negotiations, because failing to observe the law could allow the employee to bring the employer’s offer to the attention of the employment tribunal in an unfair dismissal claim. To help line managers get to grips with this process, we have updated our line manager briefings on misconduct and poor performance.
These are some dos and don’ts taken from the line manager briefings that can help line managers have legally compliant pre-termination discussions:
- Do give the employee an honest explanation as to why an offer is being made.
- Do make clear that it is the employee’s decision whether or not to accept the offer.
- Do explain, in a factual manner, the likely consequences of the employee not agreeing to the offer, for example that disciplinary proceedings will need to be commenced.
- Don’t put pressure on the employee to accept the offer, for example by saying that the employee will be dismissed if he or she does not accept it.
- Don’t harass, bully, intimidate or assault the employee, or threaten to do so, for example by using offensive language.