Sacking someone who didn’t see it coming, who may realise that the process to replace them has been going on behind their back, is asking for trouble.
An employer taking constructive steps towards dismissing an underperforming employee, in a clandestine and ultimately destructive way, constitutes constructive dismissal. It’s a horrible experience for any employee, and even worse when the HR manager has been part of the career assassination unit.
An early step along the dangerous path of constructive dismissal is for the CEO or a management team member to ask HR to do a search for alternative talent to replace the underperformer. HR then gets its internal recruitment arm, or more likely a recruitment firm, to do the dirty work. A blind ad on Seek could be involved.
The plot thickens and the risks rise when, at the long-list stage in the recruitment process, potential candidates understand what the job is and who the employer is. Then, either through the recruiter’s declaration or the candidate’s detective work, there is a realisation that the job is currently occupied.
Finally, a recruit is secured and signed up. The manager – or more likely HR – is charged with the task of approaching the incumbent victim and ending their employment on the Friday afternoon, with escorts to see the person off the premises with the usual cardboard box of personal items. Assassination complete.
When this happens, and the employee discovers through their network or social media that a longstanding plan had been actioned to remove them, legal action can be commenced against the employer for constructive dismissal.
So what is ethically and legally legitimate for HR in these circumstances, and what is not?
Being a participant in the above scenario is not okay – professionally or morally. If discovered, being a co-conspirator will cause loss of trust with almost all of your co-workers. However, it is okay within your succession-planning activities to cast the net outside your organisation and identify potential external candidates as successors for critical positions. And it’s legitimate to use search firms and social media data to build profiles of all such external successors.
It’s beginning approaches to external candidates when a job is still occupied by an employee that breeches legitimacy.
When the boss comes to you and says they want to kick off a blind recruitment process to replace John or Joan, you need to have the courage to explain that it will expose the company to infringing constructive dismissal employment laws. You should add that it would be better for the company to approach the employee and advise them that their performance isn’t meeting expectations and the company would like to make a change over time and, with their knowledge and company support, transition them to a role elsewhere.
The tactics required to change direction and avoid a constructive dismissal claim aren’t that complex, but they do require HR to have the courage to push back against ruthless, risk-taking bosses thinking only of the short-term bottom line.
Also on this topic: Charles Power from law firm Holding Redlich provides a legal perspective, as part of this series on constructive dismissal.