Firing an employee

[Casino68]

We are a small family business who employed someone 6 years ago. He has always been less than ideal, unable to follow simple instructions, very slow and at times obstructive. We work in an industry which is notoriously bad for finding and retaining labour. 13 months ago we hired a new employee who is brilliant which highlights just how bad the old employee is. Since the new employee started the old employee has been in a huff, really no other way to describe it. He has become really lazy and deliberately goes out his way to make our lives difficult.
Our brilliant employee has been on a weeks holiday and in that week the original employees conduct has been unbearable. "Accidently" damaging equipment, not following instructions and only doing part of a task that they have been doing adequately for the past 6 years, pointing this out to them has lead to them sulking and not talking to us. It is as if he truly believes that we are here for his convenience rather than vice versa and he makes it obvious that he really would rather be anywhere else and thinks by turning up he is doing us a massive favour.
I really feel that matters have come to a head. I know it sounds awful but I don't want to make him redundant as I would really resent paying him redundancy. Also making them redundant would make it difficult to employ someone to replace them. I am considering giving him a verbal warning (confirmed in writing) and then following the necessary step to terminate his employment if things don't improve.

Does anyone know if accepting his less than stellar performance for the last 6 years means we've set some sort of legal precedent for having to accept it in the future?

Speak to an HR professional - your local Chamber, LEP, FSB, probably your bank, will know someone you can hire to advise you. Professional help now will be cheaper than getting it wrong.

From the basic information you've given there may be routes to either firing or making redundant. But both routes need things to be done correctly, with expensive errors waiting to trip you up.

I do fear you may fall foul of the redundancy rules if you retain the new employee whilst making the old one redundancy. You really need to "dot the I's and cross the t's" to ensure your procedure for choosing which to make redundant is watertight and can't be challenged.

The reality is that you're sacking them for incompetence/attitude rather than their job being redundant.

I think you'd be better going down the informal warning>written warning>final warning route, following the law to the letter, even if it takes a lot of time and effort to go through the proper process.

A big problem is that you've not tackled his behaviour/attitude/incompetence earlier as and when it was happening, so things that you've let slide can't really be taken into account now, as they've become "the norm". You would be better coming down hard on any new issues that happen, i.e. verbal and then written warnings when new things happen, every time something happens. Log all future instances, refer to them in written warnings/final warnings, etc., and then sack them if such instances continue after warnings.

Performance Improvement Plan -then you can write down EXACTLY what is expected of him

I wouldn't go down the redundancy route. I'd take professional advice about the process of managing him out with improvement plans and written warnings. Will cost you a bit but then you follow the correct process and there can't be any comeback (hopefully)

His role is definitely being made redundant, the cross over between the new and old employees is about 5%., we are struggling to find jobs for him to do and often let him leave early rather than have him standing around. We have carefully considered which employee was chosen and have evidence to back this up.
We realise that alternatives to redundancy have to be considered, there are no other roles he could fill or be created for him. The only possible option is a reduction in hours, which I can't imagine would be an option for him due to the travelling involved.
The legal cover we have is more than enough to cover this situation and we are consulting after every step, we have to do this to ensure that we are covered expense wise if it goes to tribunal.

You are covered IF you follow their instructions exactly and use their letter templates exactly. Also be aware the timeline for following instructions is generally 90 days more with the employee while its all progressing so you are likely going to have him for another 90-120 days.