By Charles Power

If there is a chance that a workplace situation could turn into a dispute, you might seek to resolve it by negotiating with the employee to leave your employment. But, you risk breaching the unfair dismissal or general protection laws if you say or do something that forces that employee to resign! This includes telling the employee that you have decided to dismiss them and offering them the chance to resign before they are dismissed.

You can avoid a legal claim if you offer the employee a separation agreement, provided:

• any investigation being undertaken into the employee’s conduct or performance is fair;
• you give the employee reasonable time to consider the offer and take advice about it; and
• the employee accepts the offer and voluntarily resigns.

Make sure you include the following things in separation agreements:

• A date stating when the employee’s employment will end.
• A sum to be paid to the employee that includes:
  • an amount in lieu of notice;
  • an ex gratia benefit; and
  • a redundancy payment (if relevant).
• Any unpaid wages or accrued leave entitlements to be paid to the employee.
• A clause stating that the employee agrees not to make any future legal claims against you.
• A clause stating that neither you nor the employee will criticise one another.
• A clause stating that the employee will not disclose the terms of the agreement to anyone except for specific purposes (e.g. for legal or accounting reasons).