Firing an employee is never fun. Depending on the circumstances, emotions can run high and there may be concern about a wrongful discharge suit. Writing out a termination letter, whether or not you plan to give it to the employee, is a good way to calm emotions and prepare for possible defense. Giving it to the employee is also a way to get your explanation in front of them before they start crafting their own (which is usually prejudicial to your company).
The employee is legally entitled to request a letter explaining the reasons for termination. Getting the reasons in writing before the firing helps you clarify your reasons and make sure that you have sufficient documentation to back them up if needed. While there is less ground for a wrongful discharge case with a probationary employee, it is a good practice to write one for them, too, just in case they believe they were fired for discriminatory reasons.
In many cases, whatever explanations you give in the letter will be the only ones you can raise in defending yourself in court later, so don’t be too kind (or punitive). Using neutral language, explain exactly why their behavior was inappropriate and what you did to help correct it before firing. Consider running the letter past your attorney if there is any doubt about whether you have gotten everything down, or if you are unsure of your ability to be objective.
When you write the letter, remember that you are writing for an investigator or jury, not your own side. Keep it professional and point to observable facts. Don’t use proxy reasons; “late for work three days in one week” isn’t as strong as “refused assignments three times in the last year, took unapproved overtime, late for work on a regular basis, and used inappropriate language.”
Address observable behavior rather than using labels that are subject to interpretation or are obviously negative. Mention “visible tattoos and bare midriff” in violation of the company dress policy (and cite it), rather than saying she had a “slutty appearance”. Refer to “repeated assignments that were turned in past their due date”, not his “laziness”. Mention any progressive discipline or warnings, with dates. Confirm that the employee’s personnel file supports your assertions.
If the letter will be given to the employee right away, include a copy of your grievance procedure if you use one for termination. If you don’t plan to provide it unless asked, place the letter in the personnel file for later reference.
If there is any emotion involved in the firing, run the letter past a third party, such as your HR person. Does it still look reasonable? Is it factual? Or is it emotional? If the firing is likely to end up in court, have your attorney review it.
After the letter is written, use it as a template for the termination interview. The more consistent you are, the more likely the employee is to hear your version of events. Having thought out what you want to say will make a difficult conversation a little easier and you will be less likely to get sidetracked into unproductive territory.
Thanks to Jim Nys and SHRM for providng information.