should we put off firing an employee for several months so he doesn't violate probation?

A reader writes:

I work at a small, fully remote start up, and I am HR — but wasn’t hired for that, and am learning HR as I go. I generally take care of day-to-day HR responsibilities but am not responsible for higher level personnel decisions.

A manager high in the company, Tiffany, has been having ongoing problems with an employee’s performance. The employee, Pete, was moved to a new role a few months ago that she thought might be a better fit for him, and the problems have continued. Tiffany showed me extensive documentation of written communication they’ve had about his work and how frequently she’s been correcting him, asking him to do things differently, and then having to check in and ask why it wasn’t done the way she asked. She’s made it clear to me that Pete cares a lot about his work and is trying very hard, but is continually causing a lot more work for her as she goes behind him to fix things and has to meet with him much more frequently than any of her other employees. He just wrapped up a big project where deadlines weren’t met because of his performance, and she is ready to let him go.

The catch here is that Pete has committed a crime in the past and is on probation for several more months — probation that is dependent on him remaining employed. Tiffany, along with our CEO, want to be as kind as possible to Pete and not do anything to endanger his probation when it is so close to ending, but Tiffany said she truly does not want him working on anything else because of how much more work it creates for her. I suggested giving him a month’s notice that we would be letting him go and encouraging him to transition over his work to other team members and otherwise he could use work time to job search, but they were concerned that that wouldn’t be enough time to find employment, which I can agree with. I suggested that if they want to wait until his probation ends, they could put him on a PIP that ends then, or just wait until then to let him know that we’re letting him go. Tiffany was absolute that she did not have any projects she wanted him working on, and her ideal scenario would be to keep Pete employed but not actually let him do any work for nearly four months.

And, well, that’s what she and the CEO decided to do, basically. They gave him a termination notice letting him know that his employment would be ended the same day his probation ends, unless he decided to quit sooner, which is a date nearly four months away. Tiffany doesn’t have anything at all that she wants to let Pete work on in that time, aside from whatever is needed to transition his work to other people, and encouraged him to use work hours to job search.

What do you think of this? On the one hand, I appreciate knowing that my company does not let people go callously, and that our CEO cares so much about being compassionate to employees — no one should treat someone’s livelihood lightly. That said, this seems so extreme, and not something that would be doable for every employee (anyone would like four months notice of being fired, right?). How would you have recommended we handle it?

Well … it depends a lot on context.

In general, employers wield so much power in the employment relationship that they should default toward compassion when they can. If someone risks going to prison if you end their employment now rather than a few months from now (which is presumably what violating a condition of his probation could mean), I’d like to try to extend it if we can.

But whether that’s reasonable depends on a lot of factors. One of the biggest is what you’ve done for other people when firing them and what you’re willing to do in the future. If others with a similar level of performance problems as Pete have been let go immediately, and Pete happens to be demographically different from that group in some way (race, religion, age, sex, etc.), you risk it opening you up to legal issues down the road even if your intent wasn’t to be discriminatory. (That’s not to say you can never make an exception for someone in a situation like this. You can! You’re allowed to exercise independent judgment in this stuff. But you’ve also got to consider what risks it could create for you as a company. “Risks” doesn’t equal “you definitely would lose a lawsuit over this” — a nuance that some HR departments seem to lose sight of — but you do need to be sure you’re taking it into account.)

I’d also care about how Pete has conducted himself through all this. If he’s been trying hard and working in good faith, it’s understandable to be more motivated to try to help him than if he hasn’t been.

Other context can matter too. For example, if Pete has been struggling in part because he signed on to do one type of work but the role ended up requiring him to do another, Tiffany might (and should) feel an especially high degree of obligation to make sure she doesn’t blow up his life over it. The same goes if she recruited him aggressively from a job he was thriving in or talked him into moving across the country to work for her, or if he has worked for the company for 20 years, or a number of other things that could make her feel extra obligated to ensure a softer landing for him now.

Plus, there’s the organization/team’s broader financial context — some orgs couldn’t afford to pay someone to do nothing for several months, even if they wanted to. Others could do it easily (and do that regularly if you look at some of their employees’ productivity…).

And there’s the question of how Pete ended up on probation too! Some people get a raw deal from the justice system and it’s a kindness not to make it rawer if you have that ability. And other cases … are not that.

All of which is to say, there’s no one right answer here because it depends on so many specifics.

As HR, your role is definitely to point out the need to be careful legally. But beyond that, there’s nothing wrong with defaulting toward compassion. Not endless compassion — you can’t let someone continue performing at a low level long-term — but a short, time-limited exercise in compassion under fairly extreme circumstances? I appreciate your company’s desire to do it.