How to fire an employee and stay within the law

By Lucy Taylor

Ideally, every employee would be the perfect person for the position they’re filling. Unfortunately, the world just doesn’t work that way. Some employees will need to be fired, and this situation puts employers in an awkward position. Employees may have recourse if they feel they were improperly, unjustly, or illegally fired. Make sure you’re following the law before you have the big talk with your unsatisfactory employee.

Understand your local requirements

Seemingly every part of the world has different legal specifications regarding why an employee can be fired. In some places, you don’t technically need a reason to fire an employee. They work for you until you no longer wish for them to do so. In other places, you need to have a reasonable cause before termination of employment. Be sure your reason is clearly defined and valid. If you’re unsure about your reason for letting an employee go, it never hurts to consult a lawyer.

Keep a list of minor infractions

If you’re about to fire an employee, it’s safe to assume this isn’t the first mistake he or she has made. Be sure to keep thorough and accurate disciplinary records that document previous infractions. Having dated records that contain as much information as possible will work to your advantage in the event that an employee attempts to take recourse. If the employee feels as though he or she was fired for a minor infraction, it can easily be demonstrated that this was one of many cumulative infractions.

Performance reviews are also important. If an employee has been consistently underperforming or has a record of failing to meet expectations, this can be used in conjunction with a disciplinary record to create a thorough portrait of the employee’s history with your company.

Clearly demonstrate what you will not tolerate

Provide your employees with a code of conduct, as well as information about their rights and your rights. The best time to provide employees with these materials is upon hiring them, but if any information changes throughout the duration of their employment with you, they may need to receive updated materials. If any questions arise during the termination of employment, the fired employee can consult the information that was already made available to them. This will likely shorten the discussion and clear up any confusion.

Steer clear of anything that may be considered discrimination

A fired employee who feels as though he or she was discriminated against can create a costly and complicated legal situation. Consider how the circumstances would appear on a surface level. If a handicapped or recovering employee who relies on a wheelchair takes long bathroom breaks, this may be a result of their disability or injury. Be certain that terminating this person’s employment wouldn’t be a violation of his or her rights. When in doubt, talk to your lawyer before you make a move.

Hold up your end of the bargain

Upon firing an employee, you may still have debts or responsibilities to this person. Some localities require that an employee be presented with any pay owed to him or her upon termination of employment, while other areas allow payment owed to be released according to regular schedule. You might have obligations to help that employee find new temporary health insurance or unemployment assistance. Money they’ve kept with you in a 401K or retirement account still belongs to them, and you and the employee will need to come to a conclusion regarding how those funds will be handled.

Employment and the law can come together to create touchy situations – especially when someone is about to be fired. Always seek legal advice if you’re unsure about how to proceed.


Lucy Taylor is an avid blogger who enjoys sharing her tips and suggestions with her online readers. Working as a legal expert at LY Lawyers, Lucy often helps people dealing with legal problems, addictions and crime.

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