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Misconduct

Many incidents of misconduct can be dealt with at an informal level without the need to invoke formal disciplinary proceedings against an individual – sometimes a few stern words do the trick! However, where misconduct is more serious or you are dealing with a persistent offender, it is important to take formal action and get events on record, so that you can refer back to it if necessary in the future.

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Employees who are guilty of misconduct can rightly be disciplined for this – as long as the disciplinary process is carried out fairly and any contractual and / or statutory obligations are adhered to.

Proceed with care!

If you are going to give an employee a conduct warning, you need to follow the procedure carefully. If you get the procedure wrong it could result in a finding of unfair dismissal against you, as well as enhanced compensation payments. We have more information on disciplinary procedures here.

Some common examples of misconduct are:

  • Disruptive behaviour at work
  • Misuse of company property
  • Swearing or bring verbally abusive

Suspending an employee

Suspension of an employee is a very serious thing. It should be used with real caution and not used “on a whim.” If you are going to suspend an employee, you must have a good reason to do so such if an employee has threatened violence or damage to property or where the allegation is so serious as to warrant dismissal if upheld.
You should normally suspend only on full pay.

It is a good idea to emphasise when suspending an employee that suspension is not a punishment and is a neutral act (particularly when used to separate out colleagues as described above).

Disciplinary process

Generally speaking, where an employee has less that 12 months’ continuous service, the employer does not have to follow any staged process.

Where an employee has more than 12 months’ continuous service, the employer must follow standard disciplinary and dismissal procedures as set out in the ACAS guidelines when taking any formal disciplinary action against an employee. Basically, this means that the employer must investigate the matter, write to the employee inviting them to a disciplinary meeting informing them of their right to be accompanied, provide the employee with the evidence to be used to support the allegations, and meet with the employee to discuss the allegations prior to deciding whether the employee was indeed guilty and what the sanction should be. They must offer the employee the right of appeal against any decision and hold a meeting to discuss any appeal.

It is important to remember that any sanction applied should be proportionate to the misconduct committed. Generally speaking, employers will be expected to give employees the opportunity to improve their conduct. For first or minor offences, employees might be given a verbal warning. For more serious or second warnings, employees might be given a written warning. Misconduct which is more serious still, or which is not a first offence may justify a final warning. Further misconduct or a one off incident of the utmost seriousness (i.e. gross misconduct) may justify dismissal.

So, if the misconduct committed is relatively minor or a first offence, it would be disproportionate to simply dismiss the employee because of it unless the employee had a current written or final written warning outstanding on file.

Gross misconduct

Employees who are guilty of gross misconduct (that is, very serious misconduct) can be summarily dismissed. This means that they can be dismissed without the need to give them notice or pay them in lieu of notice. Generally speaking gross misconduct is behaviour which you cannot risk a repetition of: it is behaviour so poor that there really is no alternative to dismissal.

You do not need to have followed the procedural steps (warning, final written warning etc) although of course you do need to have a proper hearing giving the employee a chance to put his or her case, and you need to have investigation the facts properly.

Some types of misconduct which may be considered gross misconduct are:

  • Unauthorised absence
  • Theft
  • Being under the influence of drugs or alcohol whilst working, especially when operating machinery
  • Discriminating against others
  • Physical violence

Disciplinary policy

Employers are required by law to set out details of their disciplinary and grievance policies. It is useful to set out clearly within these policies examples of the type of behaviour will be considered misconduct, and what type of behaviour is considered so serious that it is gross misconduct. Warning your staff from the outset about what behaviour will not be tolerated will help you if any future dispute should arise. However, the examples must be reasonable. It may be unreasonable, for example, to say that being involved in a minor disagreement with a colleague would be considered gross misconduct. However, if the employee threatened physical violence or was actually physically violent towards the colleague during the course of the disagreement, this may reasonably be considered gross misconduct.

Finally, employers should always be sure that any action they take complies with any contractual obligations relating to disciplinary matters. Failure to do so could result in an employee bringing a claim for breach of contract against them.

Discrimination

Please ensure that, in dealing with issues relating to misconduct, you do not either intentionally or unintentionally discriminate against your employees on discriminatory grounds such as age, sex, race, disability, religion, or sexuality. If you have any concerns relating to these issues you should take advice.

For business law advice call 0845 225 2635

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