It's Hard to say Goodbye

by Keith Davis LL.B., Accredited Mediator 

Gross misconduct dismissals are bad enough; we know that non-fault terminations are usually worse. However, there are many reasons nowadays why it is necessary to terminate someone’s employment. Usually these are to operate a better business. Sometimes, it is necessary just to survive.

The two normal methods normally utilised are to “let them go” and take a risk that they don’t sue, or “exit” them by means of a compromise agreement. And have you complied with the statutory dispute resolution procedures? Have you considered whether the Grievance Procedure is likely to be invoked? Perhaps these are the last things which you would choose to consider!

The compromise agreement route usually involves sending an employee home on “garden leave” whilst the two sets of lawyers negotiate terms over a period of two or more weeks, depending upon the degree of complexities involved.

We all know that the threat of litigation, the counter-threat of mitigation, and a whole range of other negotiating devices all form part of the territory. In the meantime, the employee concerned often finds the process distasteful and, sometimes, worse. To top it all, his/her solicitor will inevitably have mentioned that monetary compensation is the only or primary method of resolution. At the end of the day, or rather at the end of a seemingly intolerable number of terrible days which were underserved, the employee will sign on the dotted line to achieve “closure”.

Closure? Really?

There is an alternative.

Immediately after that awful discussion with HR, the employee is introduced to an external mediator. Then or shortly afterwards, they discuss matters over the proverbial cup of coffee. Enter the employee’s solicitor. Then we all commence a process of mediation.

If there are any threats, then these will be directed at the mediator – who does not have to pass on the negatives in all their glory. However, that’s the point you see. All involved can express their anger (within limits!), upset and disappointment which the normal ‘take this draft compromise agreement to a solicitor’ approach cannot accommodate.

Face to face mediations are usually best for those situations requiring closure within days. However, even on-line mediations are usually concluded within one or two weeks.

Still, if you prefer the conventional lawyer to lawyer non-personal alternative with the employee’s solicitor starting with the usual “I cannot believe what my client has just told me” line, then do consider the more humane and effective alternative.