What are the best practices employers should observe when it comes to employee dismissal?

While it may seem like common sense, in our practice we have noticed that a lot of employers do not follow these rules.

• Record of Employee Performance

Employers should have written records of the employee’s shortcomings or of inadequate behavior in general. Employers should thus send at least an e-mail or letter to confirm their conversations when such topics are discussed with employees. In addition, evaluations should be conducted with care. Evaluation forms should contain the actual assessment of the employment and should thus mention negative aspects when there are any. Managers usually want to avoid any conflict and are often too positive in making and filling out the evaluations.

In practice, employers tend to complain about an employee’s behavior when the time comes for dismissal, but there is usually no written record to confirm such reason for dismissal. Even evaluations do not contain or refer to shortcomings that have been discussed with employees in the past.

• Conduct to Avoid

Employers need to be very careful when it comes to the dismissal of an employee, as a mistake made in the course of the dismissal process may become costly. These are examples of conducts to avoid:

• Informing employees about the dismissal decision by SMS or WhatsApp;
• Dismissing employees for gross misconduct (motif grave), without notice or compensation, and where the behavior concerned cannot reasonably be considered as gross misconduct;
• Publishing the revocation of a director’s mandate bound by a labor agreement in the Belgian Official Gazette by specifying that this agreement was terminated for gross misconduct;
• Dismissing employees without verifying if employees are protected against dismissal;
• Dismissing employees who are entitled to an outplacement without proposing them an outplacement formula;
• Dismissing employees without being able to provide reasons for the dismissal, and to establish these reasons with supportive documents.

Managers are usually attentive when it comes to corporate branding, but they are often not well prepared for conversations concerning dismissals and are not necessarily aware of all the provisions of employment law, which are complex.

This lack of expertise or preparation could cause damage to the company’s brand or reputation, or to the foreign state’s image toward the host state in case the employer is an embassy. It is therefore recommended to be advised by a lawyer from the very beginning of the dismissal process.