How to Fire Someone Ethically: A Guide for HR Professionals
Terminating an employee without sparking a lawsuit or a big scene in the office is no easy task.
At a large organization, firings can happen every day. But to employees, it’s a life-changing and potentially shocking occurrence. That’s why your employee termination process needs to be ethical and respectful, to help outgoing employees cope, protect your company’s reputation and reduce your risk of lawsuits.
Take Walmart for example. In March 2023, the retail chain was sued by the EEOC for allegedly refusing to grant disability leave to an employee with Crohn’s disease. According to CNBC, the worker “asked for intermittent leave or excused absences, as well as requesting to be moved to a position closer to the bathroom” to accommodate the chronic illness, “Walmart excused some of her disability-related absences it did not accommodate several other absences that were due to medical appointments and a hospitalization.” The worker was later fired for too many “unauthorized” absences over a six-month period, according to the suit.
If true, this incident is not just illegal, but unethical as well. The employee was already juggling work with health issues and took the correct avenues to ask for accommodations, but was still terminated citing the regular attendance policy.
So, how do you find the perfect balance between protecting your company and other employees and acting ethically toward the terminated employee? Be thorough, fair, consistent and discreet. Here’s your complete guide for how to fire an employee ethically.
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Do you suspect the employee committed fraud, harassment or other misconduct? In order to fire someone ethically, you need to conduct a thoughtful, thorough investigation before deciding on discipline.
A careful investigation helps you avoid making a rash or biased decision, protecting both the employee (if they’re innocent) and your organization (if the person files wrongful employee termination or defamation claims).
Set Up Your Investigation
Before starting your investigation, plan ahead to make sure you don’t miss any steps. In addition to completing the steps described below, you should also:
- Determine the purpose, goal and scope of the investigation
- Create an investigation plan
- Hire external experts and/or investigators, if necessary
- Involve your employee’s union, if applicable
- Keep the accused employee and the complainant (if there is one) up-to-date on the investigation process
- Conduct objective interviews with the accused person, complainant and witnesses
In order to prove an employee did something that warrants termination, you can’t rely on gossip or “bad vibes.” Instead, gather as much information and evidence as you can.
First, look for digital and physical evidence. For example, if you think the employee stole inventory, scan through security footage to place them at the scene. If the employee is accused of harassment, search through their emails with the victim to see if they corroborate the victim’s story.
Next, conduct interviews with victims (if applicable), witnesses and the employee. Piece together a timeline of events based on these accounts. Determine each interviewee’s credibility. Finally, decide if you have enough evidence that the employee broke a policy or law to a degree that warrants termination.
“One of the most effective practices an employer can follow is to document carefully the reasons and the process followed for any employee discharge,” says Robert Bird, professor of business law and business ethics. “Document, document, document is an important practice for human resource personnel.”
Throughout the investigation process, document every step. Write down where or from whom you got a piece of evidence or information, and when. Keep track of who completed each step and why. Not only could strong documentation protect your company from a wrongful termination lawsuit, but it also makes the termination more ethical.
Tell the employee how and why you did what you did. This helps them understand exactly what they’re being investigated for and shows that you took proper measures to come to your conclusion. They might feel more understanding about your decision if they know you came to it through a thorough, ethical and fair process.
Termination is just one part of a larger workplace culture.
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Point to Policy
In order to fire someone ethically, make sure their alleged behavior is covered by and prohibited in an internal policy. These could include:
- Harassment and discrimination (e.g., sexual harassment, bullying, stalking)
- Fraud and theft (e.g., data theft, conflict of interest, IP theft)
- Health and safety (e.g. failure to wear PPE or follow safety instructions)
- Workplace conduct (e.g., attendance, performance, drug/alcohol use, personal use of company property)
As you investigate, focus on which policy the employee has broken. When you inform them of your decision to terminate their employment, you can point to a specific document and explain how they failed to meet its requirements.
For instance, what if you discovered that the employee has been selling your trade secrets to a competitor? You should find the part of your organization’s anti-fraud policy that expressly prohibits this behavior, then explain that they breached their agreement as an employee by not following it.
“If an employee argues that the discharge was wrongful, the employer can point to established policies and procedures that it used in order to terminate that employee. Of course these policies cannot be illegally discriminatory or otherwise violate the law,” says Bird.
This practice not only helps the employee understand why they’re being terminated, but can also save your company from potential defamation lawsuits.
Let’s look at the example above. If you cite the reason for termination as “theft” and share that information, the fired employee could file defamation claims against your organization. However, stating that you found the employee to have “broken an internal policy” has fewer negative connotations.
In most states, if you’re dealing with “employees who want to sue [your company] for defamation due to a bad reference or for firing them for what the employee feels is a false reason,” you are “shielded from any defamation liability for giving the reference, as long as [you] speak in good faith and believe what [you] say to be true,” explains employment discrimination attorney Matt Besser.
In order to fire an employee ethically, you need to protect their privacy throughout the process. This shows that you respect them and can reduce the risk of conflict or violence (more on that below).
To start, schedule the termination to take place “in a neutral, private setting such as a conference room,” says The Society for Human Resource Management (SHRM). Firing an employee at their desk could embarrass them in front of their coworkers. Find a space where you can close the door and, if possible, draw blinds or otherwise block other employees from peeking in.
In addition, keeping the details of the termination confidential also protects your organization from potential lawsuits. If the terminated employee finds out that you’ve discussed their dismissal with other employees (unless those people are involved), your credibility could come into question. As a result, the employee could file a wrongful termination or even defamation lawsuit against your company.
Sometimes, you will have to compromise confidentiality. For example, in harassment cases, you’ll need to share details of the investigation, including the outcome, with the accuser as well as the accused in order to gather accurate information on the incident.
As a general rule, share investigation and termination details only on a “need to know” basis. The fired employee will maintain their dignity and you’ll keep your reputation as a caring, ethical employer.
Before terminating an employee, consider whether they belong to a protected class. According to the EEOC, these include “men and women on the basis of sex; any group which shares a common race, religion, color, or national origin; people over 40; and people with physical or mental handicaps.” Firing an employee who belongs to one of these groups could result in a lawsuit if they think you’re discriminating.
“Especially if the employee is a minority, female, pregnant, or over 40, it is important to make sure that you are not treating the employee any differently than any other employees,” says attorney Serena Lipski.
Some forms of bias and discrimination are obvious, but for others, you might not even realize you’re doing them. For example, are you firing a pregnant person for missing too much work for medical appointments when you’d allow an employee with other medical needs to miss the same amount of time?
Or, say you are firing an employee for poor performance who happens to be legally blind. If the employee asked for special accommodations to help their performance, did you grant them before terminating the person?
Make sure that you treat all employees consistently and fairly, and make reasonable accommodations for them as required by the Americans with Disabilities Act. That way, if the terminated employee files discrimination claims, your organization will be prepared and protected.
Strong documentation helps defend your company if legal action does occur. Make sure you have written accounts of the incident(s) that led up to the employee’s termination, as well as what policy they violated and how. Include as much information as possible, including incident dates and times, witness/victim statements and any physical or digital evidence you’ve gathered.
Make sure you’ve addressed your biases and done your due diligence to justify the employee’s firing according to your policies and performance reviews, not because of who they are.
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Ethical companies tackle every internal process with consistency and transparency. These values should apply especially to sensitive procedures such as employee terminations.
“Ask yourself how you have handled similar situations, because discrimination lawsuits are almost always brought by employees who feel they have been treated differently from other employees,” says Cynthia Calvert, employment lawyer and president of Workforce 21C.
“If you gave warnings or second chances to other employees under similar circumstances, give warnings or second chances now. This is particularly important in light of research that shows that people are more likely to be lenient with people who are like themselves or who are in majority groups, and that they are unaware that they are being more lenient.”
To ensure consistency, create a written progressive discipline process that’s accessible to all employees. Follow it to the letter, regardless of the employee’s tenure, department or position. SHRM suggests that you “only deviate when an offense is egregious enough to warrant immediate dismissal,” like an extreme act of violence.
Need help making sure you’re unbiased? Ask yourself:
- Am I following our written procedures?
- Am I approaching this incident the same way I have for similar incidents in the past?
- Does this incident trigger negative memories of another person/incident?
- Am I making this decision based on facts or personal feelings towards the employee?
- Did I assume the employee’s guilt (or innocence) before investigating?
Employees will know what to expect, you’ll save time deciding how to handle incidents and you’ll reduce your risk of wrongful dismissal claims.
Bonus tip: A termination meeting should not be the first time the employee hears that there’s a problem with their behavior. If there are issues with their performance, they should have been warned and supported by their manager in performance reviews. If there was a misconduct incident, they should be aware of and interviewed for your investigation.
Regardless of why you are terminating the employee, treating them with respect and dignity is key. However, you also need to prioritize physical and financial safety to protect your other employees and your organization.
Fire Fast to Stop Further Issues
Are you terminating an employee for fraud, harassment or other misconduct? In order to “stop the bleeding,” you need to work fast. The longer you wait to remove the employee, the more time they have to continue their bad behavior.
This could result in major negative effects on your company’s finances and reputation, in addition to your employees’ well-being. For instance, if the employee has been defrauding your organization, they could continue their scheme or come up with another by the time you dismiss them.
Or, if the employee has sexually harassed their coworker, you could face a lawsuit from the victim for failing to protect them. You could also gain a reputation as a company that doesn’t care about its employees and sides with harassers.
According to attorney Eric Meyer, partner at FisherBroyles, LLP, “by not . . . taking action reasonably designed to end the harassment, the company is creating an issue for itself and exposing itself to potential liability down the line.”
Put together a formal document explaining why you’re terminating the employee. In this document, you should include:
- Termination date
- Reasons for termination (as specific as possible, including incident dates and policies broken)
- Information about severance pay and what will happen with their benefits/retirement, if applicable
- List of company property to be returned (e.g. keys, swipe cards, badges, electronics)
- Copies of signed non-disclosure and/or non-compete agreements signed upon employment
Finally, set the termination meeting with the employee as soon as you can after the investigation closes. Share an HR staff member’s contact information in case the employee has questions or concerns.
Not sure where to start?
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Thwart Potential Violence
“The point of termination is perhaps the greatest opportunity for deadly workplace violence,” says Kathleen Bonczyk, founder and executive director of Workplace Violence Prevention Institute.
If the employee isn’t expecting their termination, doesn’t agree with it or is in distress for other reasons, they could react violently upon hearing the news. Most employees won’t react this way, but it’s important to know the warning signs, described by ESI Employee Assistance Group as:
- Problems controlling mood or anger
- Inability to get along with coworkers
- Fascination with weapons and/or violence
- Dealing with a stressful event outside of work (e.g. bankruptcy, divorce, illness)
- Intense negative reactions to minor setbacks
- “A sudden deterioration of work habits or personal grooming”
- “A history of problems with past jobs and/or personal relationships”
A violent outburst upon termination could be as mild as punching a wall or kicking over a trash can, or as serious as a deadly shooting.
To prevent disruptions at best and serious violence at worst, you need to take safety precautions before the termination to mitigate risk:
- Don’t tell the employee what’s happening before the meeting. This reduces the odds that they will access a weapon. However, they should already know that you are investigating them for an incident or monitoring a performance problem.
- Have a third party in (or just outside) the room. An armed security guard is a good bet, but having them in uniform could heighten the tension.
- Ask a security guard to gather the employee’s belongings, or set up a monitored appointment for them to do so after work hours.
- Revoke the employee’s access to the building, technology, and other locked premises and change passwords immediately after the meeting.
- Keep security on high alert for a few weeks after the termination. Listen to office gossip for hints that the employee plans to come back and attack.
“An employer has the right to terminate an employee’s employment without cause at any time and for any legal reason. All the employer has to do is provide the employee with reasonable notice of dismissal or pay in lieu of notice of dismissal,” explains employment lawyer Phil White.
But just because it’s legal doesn’t mean it’s ethical.
First, cover your legal bases. Decide if you’ll choose to give the employee notice or pay in lieu of notice, and carry out that plan. Make sure you can prove you’re not discriminating against the employee for belonging to a protected class. If you have written policies and procedures for terminating without cause/layoffs, follow them and document the process in writing.
Then, turn your focus to ethics. To make a termination without cause more ethical, you must:
- Let the employee know ahead of time, even if you’re giving them pay in lieu. If they aren’t being fired because of an incident and you have no reason to believe they’re a danger, give them notice so they can start looking for another job.
- Be consistent. Consistency not only ensures the termination is legal, but ensures your processes are fair and unbiased.
- Tell them in person. Having the conversation is never easy, but a face-to-face meeting shows respect. A letter is impersonal and lacks the compassion that the employee deserves in this tough situation. If the employee works remotely, show respect by turning on video, using cordial and delicate language and showing the same level of professionalism you would in an in-person meeting.
How to Terminate an Employee Ethically
The termination process can be tricky to navigate, especially if tensions are running high. However, treating the fired employee with dignity, respect, and understanding can make all the difference. Showing compassion can make a terrible day more bearable for the employee, and could even prevent a violent outburst.
Did you know that your HR investigations can help maintain your culture of ethics and even drive value for your business?
Learn how in our webinar with Sharlyn Lauby.Watch Webinar
With Case IQ’s modern case management software, ethical investigations and employee termination are easy. You can track, manage and prevent issues all on one secure platform and analyze past case data to spot patterns of behavior. Learn how Case IQ can improve your investigations and culture here.
Important: This post is for informational and educational purposes only. This post should not be taken as legal advice or used as a substitute for such. You should always speak to your own lawyer.