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Managing misconduct

By Rob Eldridge of Berwin Leighton Paisner

What is misconduct?

Misconduct is behaviour that an employer deems inappropriate for an employee. It usually relates to an employee's conduct during working hours. There are varying degrees of misconduct, ranging from minor misconduct or serious (gross) misconduct.

The relevance of misconduct is that an employer may, in certain circumstances after following appropriate procedures, dismiss an employee because of misconduct. Once an employee has one year's continuous service he has protection from being unfairly dismissed. The misconduct of an employee, however, is a potentially fair reason for dismissing an individual, subject also to the employer carrying out the dismissal in a fair manner.

It is important that employers have a set of disciplinary rules and procedures which set out standards of conduct at work. Otherwise an employee may not know what is expected of him, also it may hamper an employer from taking steps to discipline (or punish) the employee. Most employers will either have a disciplinary procedure policy or provision in their contracts of employment explaining what will not be acceptable behaviour. In some industries there may be an emphasis on certain characteristics, for example what may be viewed as unacceptable behaviour for a police officer may not be misconduct for those in other careers.

What is gross misconduct?

If an employee commits an act of gross misconduct an employer has the right to dismiss the employee without notice.

However, it should be noted that gross misconduct does not mean that the employee can be dismissed on the spot; there is still an obligation for the employer to investigate allegations and carry out any dismissal in accordance with a fair procedure.

To ensure that disciplinary rules operate effectively, it is advisable for employers to ensure that the workforce is not just aware of the rules but if possible are involved in the making of the rules. It is not possible to define all the areas which could constitute gross misconduct, however, they can include:

  • fighting
  • theft from the employer or colleagues
  • fraud or falsifying work documents
  • accessing and/or distributing pornographic emails or websites
  • deliberately damaging company property
  • serious bullying or harassment
  • bringing the employer into serious disrepute
  • serious infringement of health and safety rules
  • serious failure to follow reasonable instructions.

As can be seen from the list above the common theme is that it must be an action that has a serious impact or consequence.

Employees should be made aware, either in their contract of employment or in disciplinary procedures what are the likely consequences if they break the guidelines the company has laid down in relation to their conduct.

Employers must be consistent. If other employees have previously committed the same offence but have not been dismissed it may be difficult to justify dismissal on a subsequent occasion.

Employee's rights

Generally speaking, if an employee has been with the employer for over a year they have unfair dismissal protection. Although employees have the right not to be dismissed for an unfair reason, the conduct of an employee is expressly stated to be a potentially fair reason to dismiss.

Employees also have the right not to be discriminated against on the grounds of their sex, race or disability. This would include being singled out for a warning about their conduct or receiving harsher penalties than other employees would receive.

Employees have the right not to be dismissed in breach of their contractual terms. For example, failure to follow a contractual procedure may result in a claim of breach of contract.

Employees are entitled to be dismissed on notice (unless for gross misconduct). Failure to do so entitles the employee to claim damages for breach of contract. This type of claim is also called 'wrongful dismissal'.

What should an employer do if he suspects an employee of misconduct?

  • The employer must investigate the matter fully (speak to witnesses, collect documentary evidence etc).
  • The employer must also give the employee an opportunity to explain himself.
  • The employee should sufficiently know what the case and evidence is against him before any hearing.
  • Prior warning of the hearing date and that the disciplinary action is under consideration.
  • Give the employee the opportunity to call witnesses.
  • Inform the individual he has the right to be accompanied by a colleague (or a trade union official).
  • Inform the employee he has the right of an appeal.

When will it be reasonable to dismiss for misconduct?

Even though an employer may have strong suspicions that an individual is guilty of misconduct, this may not be enough. Although an employer does not have to show an employee committed the offence "beyond all reasonable doubt", there is a threshold that must be reached. In particular:

  • The employer must believe that the employee is responsible for the conduct in question.
  • The employer must have reasonable grounds for this belief.
  • The employer must carry out as much of an investigation into the matter as is reasonable.

What if an employee is charged with a criminal offence?

  • The employer does not have to wait for the outcome of police investigations or criminal trial.
  • The employer should hold its own investigation into the matter.
  • The employee's rights to have this matter investigated by his employer and to present his side of the story remain regardless of the fact that he is charged by the police.

Out of office misconduct

Generally, employees will only be subject to the company's disciplinary rules and procedures during their office hours or when they represent the company.

In certain circumstances an employee's behaviour may be subject to the employer's scrutiny if it is deemed to be likely to impact on the performance of his contract or the reputation of the employer. Out of office misconduct must be particularly serious to warrant disciplinary action and the behaviour should also relate to the employee's ability (or perceived ability) to do his job.

Disciplinary action

The type of disciplinary action that is taken will depend on the employer's disciplinary procedures and the circumstances surrounding the misconduct. The employer will have to follow its written guidelines regarding certain types of misconduct. If historically an employer has always been lenient on a particular matter an Employment Tribunal is likely to find the employer has acted unreasonably and unfairly dismissed an individual if it suddenly decides to invoke its disciplinary procedures in disciplining individuals without warning.

Warning tiers in a disciplinary procedure

Usually employers will decide to issue a first warning orally. This is appropriate if it is a minor infringement that cannot be dealt with on an informal basis. The employee should be told that this is the first step in the disciplinary procedure and why he is receiving the warning. At this point he should also be informed of his right of appeal against the decision. Although oral warnings will be kept on an employee's personnel file, they should be disregarded for further disciplinary purposes after a specific period of time.

If an employer regards an infringement as being more serious then the employee should be given a formal written warning. Again an employee should be given details of the reason for the warning as well as what is required from the individual in the future and the allotted time scale for improvement. Employees should have a right of appeal. Employees also must be warned what penalty there will be if after the allotted time the employer does think there has been a satisfactory improvement. The written warning should also be kept on the employee's personnel file but cannot be considered for disciplinary procedures after a specific period of time.

A final written warning is appropriate if there has been a failure to either improve or change conduct while the earlier warning is still 'live'. This type of warning can also be used if there is a one-off occurrence of misconduct that is deemed by the employer to be sufficiently serious. As always the final written warning should provide details of the misconduct, warn that failure to rectify the situation may lead to dismissal or some other disciplinary action which is short of dismissal (which is explained below). Again employees must be told of their right to appeal. The written warning can only remain live for a specified period of time after which point it must be disregarded, no matter how serious the misconduct.

Disciplinary action short of dismissal may include a transfer, demotion, loss of seniority, suspension without pay or loss of increment. An employer cannot take these sanctions unless there is a specific provision in the employee's contract.

If an employer decides to dismiss (either because of gross misconduct or failure to rectify behaviour following a final written warning) the employee should be informed as soon as possible of the decision, as well as the reasons for the dismissal. He should also know the date their employment will terminate and the period of notice. An employee should also be told of the fact that he has the right to appeal as well as how he can make that appeal and to whom. Employers should also confirm the decision to dismiss in writing. If an employee has at least one year's continuous service they can request a written statement of particulars of reasons for their dismissal.

General considerations for employers when disciplining

A good disciplinary procedure will enable an employer to take appropriate steps in the event of misconduct of an employee.

The disciplinary procedure should be in writing.

Employers should:

  • treat all employees equally;
  • give consideration to the employee's general work record including their length of service, position and whether there are any special circumstances;
  • ensure incidents are dealt with without undue delay;
  • ensure the proceedings (including any statements from witnesses and records) be kept confidential;
  • specify what disciplinary sanctions the company may take;
  • state who has authority within the company to take each level of disciplinary action;
  • ensure employees are informed of the allegations against them as well as any relevant documentation before the date of any hearing;
  • ensure that employees have the right to state their case before any decision is reached;
  • allow employees to be accompanied either by a colleague or if appropriate, a trade union official;
  • ensure that the sanctions are proportionate to the misconduct;
  • ensure that allegations will be carefully investigated;
  • ensure employees are given an explanation of any sanction; and
  • specify that there is a right to appeal as well as how and when this must be taken.

Rob Eldridge is an employment lawyer at Berwin Leighton Paisner

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