This is fine if they are a relatively new employee as they won't ordinarily be able to bring a claim for unfair dismissal if you decide to dismiss them with notice (although you should be wary of potential claims for discrimination or automatic unfair dismissal). But what if the employee does have the requisite service to claim unfair dismissal - if you can't quite put your finger on the reason it's not working out it will be difficult to justify the decision to dismiss in an Employment Tribunal?
From the 29 July 2013 an alternative option to dismissal has been introduced - confidential negotiations leading to a 'Settlement Agreement'. The new legal provisions make it permissible for an employer (or an employee) to initiate discussions about terminating employment on agreed terms. Until now the possibility of a settlement arrangement could only be brought up where there was already an existing dispute (for example a grievance brought by the employee or where dismissal had already taken place).
An employer (or employee) can suggest confidential negotiations at any point. The original offer does not need to be in writing but any final agreement must be.
The fact that negotiations took place, along with whatever is said during the negotiations (subject to some rules outlined below), cannot be referred to in any Employment Tribunal proceedings that may arise out of the employment relationship at a later date.
If the parties are able to agree terms then the employment can be terminated by mutual agreement, the provisions of which are contained in the Settlement Agreement. These normally provide for some form of severance payment and / or a reference of agreed wording in return for the employee waiving his/her right to bring claims in the Employment Tribunal against the employer.
For the Settlement Agreement to be binding the employee must take independent advice on the terms, usually from a solicitor or trade union representative, the cost of which should be borne by the employer.
Care needs to be taken over the content of the Settlement Agreement to ensure it effectively compromises all and any claims the employee may have against the company.
ACAS has published both a statutory code of practice and further non-statutory guidance on confidential negotiations and Settlement Agreements which are vital reading for any employer considering this option which can be downloaded here:
If you are considering commencing confidential negotiations with the aim of entering into a Settlement Agreement call us now on 0114 241 7092 for advice, assistance and to get an Agreement drawn up which will meet the statutory requirements.
By Guy Woodcock
If you don't have Microsoft Office, or Microsoft Word installed on your PC or Mac, don't worry - you can still use our products. You can get a free alternative from Open Office.
Open Office Org is open-source developed alternative to Microsoft Office, developed by a large software company called Oracle. Open Source means the company who build the software, allow 100% use of it, 100% free.
Since Open Office is specifically developed to be exactly the same as Microsoft Office, with all the same programs in the suite (Eg: Word, Excel, Access and Power Point) - it will freely open any Microsoft Office file-format. Meaning, just because a document was written in Microsoft Word, doesn't mean it can't be opened in another program. Open Office will do that, and vise versa.
To download and install Open Office;