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"Want to fire someone? Then get ready to bend the law."

Head of People, Operations Manager, COO… whatever their job title, they’re often wrestling with the very same problems and challenges.

In The Secret HR Manager, we sit down with an anonymous industry insider to lift the lid on how HR really works.

To allow them to speak freely, we have withheld their identity.

Here’s something no one tells you when you’re just starting out in HR:

What the letter of the law says you can do and what you actually have to do in the day-to-day reality of your role are two very different things.

Now, I’m not saying HR managers are free to simply flout employment law as and when they please. But there is certainly a significant disconnect between what is written in the actual legislation and what is now accepted as normal practice.

This is the sort of thing that your company lawyer will never want to tell you… and if they do, it’s the kind of conversation that happens at the pub on a Friday, not in the office.

It’s their job to cover you from every conceivable angle, and they are always much more comfortable when your company is sitting on the right side of black-and-white, set-in-stone legislation.

Where they feel less safe is in the murky grey area of 'case law', which is constantly shifting and evolving. That’s why company lawyers will always default to the comfort and safety of the legislation – you know where you stand with that.

It’s your job as an HR professional to strike a balance between what your lawyer feels comfortable with and what you need to happen for the good of the company.

As is the case with so many of the HR world’s many nuances, this situation is at its clearest when it comes to firing someone.

The UK’s written legislation around firing people is incredibly cumbersome. It is really quite old law and hasn’t yet been updated to bring it into line with how society actually operates.

A lot of that law has roots in a history of trade unions and collective action and is very adversarial in nature. It was written with the goal of protecting employees from overbearing or uncaring employers – and while I’m not saying that’s irrelevant now, it is certainly not as necessary as it used to be.

As an example, the UK’s ‘letter of the law’ process for firing an employee who has passed their probation period goes something like this:

  1. First off, you’ll need to put them onto a Performance Improvement Plan (PIP). If they aren’t able to meet the expectations set out in that plan, they get a verbal warning, and then the time to address it (usually a month).
  2. After that, it’s time for a written warning, and time to address that (so another month).
  3. Lastly, you’re looking at a written final warning, and – yep, you guessed it – another month afterwards.
  4. Bear in mind that this person will probably have a contractual notice period as well, so in a best-case scenario, you’re really looking at a four-month waiting time under that process.

That’s four months of them being angry, you feeling frustrated, and your team becoming resentful because ‘you aren’t doing anything’ about the underperformance that is making all of their lives more difficult.

Most small businesses simply can’t afford for that process to take so long. I’ve worked in a lot of small tech startups in the last few years and for those companies, the margins between making it or going bust can be so, so small. You can’t risk dragging a bad situation on for so long… the stakes are just too high.

And let’s not forget the employee’s point of view here. If they are struggling to make a success of the role they’re in, it’s a horrible experience to have that drag on over a period of four months.

It goes without saying that PIPs should remain strictly confidential, but I think it’s misguided to pretend people aren’t going to notice the under-performers in their office. It directly affects them and their work, and it’s impossible not to become frustrated by that. Eventually, that frustration will spread.

So instead of heading down that road, the question becomes this:

How can you manage this situation in a way that is best for everyone?

A good HR advisor will help the company and the employee find their way to a settlement agreement. That might look like two or three months pay in return for leaving the business amicably, and in the short term. But that’s not always a great option for small businesses… there’s a cost implication involved that can mean that a settlement isn’t a viable option.

A great HR professional will go further.

The best people in these roles are the ones able to have a one on one conversation with a struggling employee and help them understand that their current role is no longer the best place for them.

I don't want to sugarcoat this unnecessarily – at the end of the day, you are trying to manage this person out of the business in the most painless way possible. But that doesn't mean it needs to be a callous or uncaring conversation.

In fact, the more sensitively you handle it, the less chance there is of any kind of backlash. If you want to excel in this industry then you need to be able take someone aside and walk them through the reasons why their current role didn’t work out – not as their critic, but as an ally.

Then you can help them move towards a career they're better suited to.

That is the win-win outcome for everyone.

The employee can leave with their head held high, being able to tell prospective employers that they quit, rather than got fired.

Their manager doesn’t need to spend three months moving through a laborious and emotionally draining firing process.

And what's more, the rest of the team sees you acting decisively and effectively on their behalf during a challenging situation.

For anyone in a leadership role at a small business, it can be awful to feel like you're letting down your team. Hearing rumblings of discontent from colleagues makes you feel like you’ve failed in your role… taking decisive action is the best thing for everyone involved.

Working in HR is like walking a delicate tightrope – a tightrope between staying within the letter of the law and making sure you do what is right for your company, your culture and your team. Not only that, but you have to make a lot of those judgement calls on your own… the HR, ‘people’ function can be a very lonely and isolated place.

What makes it worthwhile for me is the chance to take care of my team and the person leaving the business. Firing someone is always a tough experience, but I have to remind myself that what I’m doing is almost always in the best interests of the person leaving as well the team that stays behind.

Please note: The Secret HR Manager is not an employee of CharlieHR or in any way affiliated with The Workspace blog. The views expressed in this post are those of The Secret HR Manager alone.

You may also be interested in our guide on how to make someone redundant.