Managing difficult employee exits

You’d hope that most people who leave your organisation would feel content about their experience with you, but there will always be one or two who are very disgruntled.

Traditionally, employees would rant and rave about their employers down at the pub with their friends or unburden themselves at home with their family, but social media means that with a few clicks on their smartphone they can make their criticism very public. Not only can negative comments be found on individual’s social media accounts and personal blogs, but also on popular review websites like Glassdoor.

This can cause a massive headache to an employer because it can put off job applicants and cause reputational damage.

You also never know if and when you will cross paths with the employee again in the future. They may become your client or you may bump into them regularly at events, so don’t burn bridges as it may come back to haunt you.

If you think you have an employee who may stir up trouble, you need to take action to protect your organisation’s interests.

Make sure you have robust contracts in place

If you have post-termination covenants in your employee’s contract, now is the time to use them.

Typically, you will find a garden leave clause in the contracts of senior employees. This often involves asking the employee not to perform any service for the company, not to attend the premises, not to use company equipment and refrain from business contact with customers, suppliers and other employees during their notice period.

So you can essentially stop them working for a competitor until their notice period has come to a close, keep them away from confidential or sensitive company data and prevent them poaching customers or colleagues.

Remember that if you do not have a clear and well-drafted garden leave clause in the employee’s Contract of Employment and you decide to place them on garden leave (and it has not been agreed to by the employee in writing), you expose yourself to the risk of claims of breach of contract. This could entitle the employee to resign and claim constructive dismissal and it could also mean you lose your rights to enforce post-termination restrictive covenants. Seek legal advice on these covenants at the earliest opportunity.

Carry out an exit interview

Exit interviews are a good way to find out why someone is leaving and talk it through. For example, if there is a workplace issue that has had a negative effect on the employee, it is useful to chat through it and see if it can be resolved before they leave.

Make sure you cover over all the essentials in this meeting so that there are no loose ends that could make them more disgruntled.

Take care with references

If you do provide a reference, make sure that the information you give is fair, truthful and accurate. It is highly advisable to provide employees with a factual reference, laying down just the dates of employment, job title and duties.

It’s also important that you do not refuse to give a reference because of one of the protected characteristics specified in the Equality Act, such as, sex, race, age, disability or religion. This would be considered discriminatory.

Additionally, a refusal to provide a reference may result in a claim for victimisation if done in retaliation for an employee having brought discrimination proceedings or given evidence against you in the past.

If you would like to discuss a challenging employee’s exit from your organisation, contact your Employment Law Adviser who can discuss with you the best course of action.

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