Letting people go is a skill that can be learned

Some months ago, in an enriching personal conversation, the subject of social fears came up. I especially remember that we focused on the fear of being seen. I am not sure I can explain it in technical terms, but I would describe it as “if you really get to know me, if you see what lies behind what I show, you will leave, you will discard me.” It is a place where no one wants to be. I mean that.

The conversation was deeply interesting, so much so that I started looking into the subject. This fear is known as fear of intimacy: the fear of being truly known. At bottom, I also associate it with a fear of being judged.

One of the reasons labor law captivates me is its close connection with human behavior. This branch of law offers the chance to understand, analyze and observe the most fundamental human reactions.

Consider the world of work. A dismissal can be a setting where this fear appears or becomes real: “I was observed, evaluated and discarded.” Seen from this angle, it can even sound cruel.

In dismissal processes, I have seen employees who, at the moment of termination, take it for what it really is: the end of a contractual relationship, something external. But I have also seen reactions that confirm the fear of “they got to know me and discarded me” has materialized. Those are the cases most likely to end up in court.

Work is, among many other things, a means of earning income. But for some people it has become part of their identity. I am the production manager at …; I am a credit analyst at …; I am the Director of … at …. A dismissal directly calls that identity into question: I was not a good ….

All of this led me to reflect on a reality that is rarely discussed, yet one we are constantly asked about, often to help prepare scripts: how to carry out a dismissal, what to do, what to say and what not to say.

Since the risks may stem from factors beyond the loss of a contractual relationship, every dismissal should be carried out by people with specific skills and training. Delivering such unfortunate news requires special skills, some already present in the person and others developed or even trained by third parties.

Dismissing a human being can trigger unknown fears, which can fuel litigation. Very often, what lies behind a lawsuit is a desire for vindication: to obtain validation that I was not a bad employee and, in essence, that I am not a bad person.

The employer cannot control or know the fears of the people it must dismiss. What it does control is how the dismissal is carried out. Treating the person with dignity is not only the right thing to do; it also reduces the likelihood of litigation. A study published in Administrative Science Quarterly in 2000 supports this. At the high end of dignified treatment, the litigation rate was 0.4%, while at the low end it rose to 15%. The same study measured the effect of explaining the reasons for the dismissal: the likelihood of litigation rose to 20.3% when no explanation was given and fell to 1.7% when one was.

That is why the moment of communicating a dismissal is a real opportunity to prevent litigation. In my experience, those who leave with their dignity intact, who did not experience the separation as something personal, rarely file a claim. And that is where you want to be.

Inquiries: aas@aguilar.law