Misconduct at work relates to behaviour deemed by an employer to be unacceptable in the workplace environment.
Misconduct can have the effect of damaging a business’ reputation as a fair employer or a trustworthy company to deal with. It can cause damage to the property and belongings of the business and can lead to complaints and legal action on the part of employees who bring a grievance or professional organisations such as the Health and Safety Executive.
Given the potential damage that can result from misconduct at work, employers may be able to take disciplinary action against an employee suspected of misconduct. However, in doing so, employers must follow a fair and lawful process, as prescribed by ACAS in its guidelines on workplace discipline.
Where an employer fails to deal with misconduct in accordance with the guidelines, the employee may have grounds to bring an employment tribunal claim.
In this article, we look at how employers should approach misconduct at work issues to reduce the risk of workplace complaints and claims.
Disciplinary and grievance policy
As a first step, organisations should have in place a disciplinary policy which sets out clearly what is considered by the employer to be acceptable and unacceptable behaviour, and specifically, what could be considered misconduct and gross misconduct. Disciplinary action will largely be determined by the severity of the misconduct.
General misconduct at work is behaviour that is considered unacceptable in the workplace environment but is not damaging to the employer’s reputation. It may be a single act or a pattern of behaviour.
Examples of such minor misconduct could include:
- arriving late to work on a regular basis
- taking sick leave when not ill
- failure to follow procedures at work
- failure to follow instructions from a manager or supervisor (insubordination)
Minor misconduct would typically result in punitive action such as a formal warning.
Gross misconduct, however, is an act that is so serious it has the effect of threatening to damage the business’ reputation and destroying any trust and relationship between the employee and the employer to a point that it is not possible to continue the employment.
Examples of gross misconduct could include:
- theft, fraud and other serious dishonest acts, for example stealing from petty cash, taking office supplies for personal use, theft from other employees
- falsifying expenses claims
- industrial espionage
- misuse of business’ name, reputation or property for personal gain
- offensive behaviour and violence, for example fighting at work, physical assault, harassing and bullying other employees, intimidating and overly aggressive behaviour
- accessing pornographic websites through a work computer and/or storing pornographic images on a work computer
- gross negligence and violation of health and safety laws, for example not wearing the required protective clothing, handling dangerous chemicals without taking the necessary precautions, the removal of safeguards from equipment, allowing broken equipment that poses a risk to be used
- acts resulting in damage to property, for example: stacking crates in an unsafe, unchecked manner, arson, driving on-site with undue car
- alcohol and drug-related acts, for example, being drunk at work, taking drugs at work, buying and selling drugs at work
Organisations are advised to have in place a clear procedure for handling conduct issues. This should follow, as a minimum, the ACAS guidelines on disciplinary procedures.
In the event an employee brings an employment tribunal claim against your organisation, the tribunal will look at the process followed against the ACAS guidelines and where it is considered the organisation failed to meet the required standards, any compensation awarded to the employee can be increased by up to 25%.
For all disciplinary proceedings, record keeping will be critical. Contemporaneous notes and records act as a reference for any future misconduct issues to ensure consistency in the organisation’s approach, and they can also be used should issues escalate or a tribunal claim follow.
In the event of suspected misconduct at work, the procedure to follow should include:
- Reporting of misconduct and response
- Disciplinary hearing
- Decision & sanctions
- Appeal process
Reporting of misconduct and response
However the employer becomes aware of the alleged misconduct – whether through a number of a complaint raised by another member of staff, for instance, in the case of bullying, as a result of an accident in the workplace or through contact with the police after a criminal act, or some other manner – the employer must act quickly, consistently and fairly.
An employee accused of misconduct must be:
- notified that they are under investigation for misconduct, including the details of the alleged misconduct
- given the opportunity to respond
- informed of what will happen next, including the investigation process and the hearing
- given details of the possible outcome, including whether they will be suspended during the investigation
- told when the hearing will take place and given sufficient notice so that they may gather evidence and call witnesses
The purpose of the investigation is to gather evidence and information about the misconduct and the employee’s role, conduct or behaviour. It will also be important to determine the severity of that misconduct, whether it was an act of minor misconduct or gross misconduct, as this will determine the potential sanctions.
Crucially, the investigation must be fair. If the employee can show the investigation was unfair and biased, they may be able to bring a claim to the tribunal.
This means investigations would usually be led by an individual not involved in the issue, such as a member of the HR team or another manager from a different team or department. If this is not possible, such as in a smaller company, you may consider bringing in an external professional to conduct the investigation and compile the final report.
Drawing up an investigation plan can help to be clear on roles, responsibilities, timelines and to ensure all relevant evidence is gathered. It also supports transparency and fairness in the process.
While the case is investigated, it may be necessary to suspend the employee, on full pay, where the employer believes their presence at work may impinge on the investigation. Suspension should not be used as a punitive measure and it should be made clear that a decision has not been reached and the investigation remains fair and objective.
The disciplinary hearing is used to present and discuss the evidence gathered in the investigation and to allow the employee to put their case forward.
Employers should give the employee reasonable notice of the disciplinary hearing. In notifying the employee, you should also detail in writing the allegations being investigated, all evidence and information that will be discussed at the meeting and the potential sanctions they are facing.
You should also make the employee aware of their right to be accompanied. This could be by another employee or a trade union representative. The representative can take notes and ask questions on behalf of the employee, but they cannot answer questions for them.
The employee is also allowed to bring evidence to the meeting and call witnesses.
It is also important that notes are taken during the hearing. At the end of the meeting, ask the employee to review the notes and sign and date to confirm they are in agreement with the record of the discussion.
Decision & sanctions
Following the hearing, the employer should make a decision based on the evidence and information from the investigation and hearing, how the employer has treated previous similar issues and what is fair and reasonable on the facts of the case.
The potential sanctions should be detailed in the disciplinary policy, taking into account factors such as the nature and severity of the misconduct (or gross misconduct), the employee’s previous conduct and performance record, and any other mitigating circumstances.
Sanctions could include verbal warnings, first and final written warnings, demotion or dismissal.
Dismissals, in particular, require careful handling. Where the employee is at risk of dismissal, this must be made clear during the investigation and hearing process. This is generally where the issue is gross misconduct or where the employee already has a final written warning.
Employers should be aware of the risks of unfair dismissal claims and take advice to ensure correct handling in the circumstances.
The employee should be informed in writing of the decision and sanction as soon as practicable after the disciplinary hearing. The letter should also detail the process to appeal.
The appeal process should be detailed in the organisation’s disciplinary policy.
It is to allow the employee to complain if they believe the outcome was wrong, the sanction was too severe or disproportionate, if there is new evidence or if they think the process followed was unfair or unlawful.
As an employer, you must respond by looking at the case again to address the grounds for appeal.
Practically speaking, this means conducting a new investigation to consider the grounds for complaint, arranging a hearing for the appeal and looking at whether a different outcome would be appropriate.
Again, this must be completed within a reasonable timeframe and the employee advised of the outcome in writing.
Failure to offer a process to appeal or to follow a fair process can be counted against the organisation in the event of a tribunal claim.
What should a disciplinary policy include?
The policy should be written in consideration of the individual circumstances of the business, best practice (such as the Acas Code of Practice), other company policies and related legislation.
It should be regularly reviewed against the above criteria and occurrences of misconduct and disciplinary action at work.
Having a policy in place that is available to all staff can play a strong factor in preventing misconduct by fully explaining what amounts to unacceptable behaviour in the workplace.
In summary, the disciplinary policy should include:
- Explanation of what constitutes minor misconduct and gross misconduct, including examples but stating that the list of examples is not exhaustive.
- Explanation of disciplinary action and what form it could take.
- Who the procedures apply to.
- Obligations of the employer.
- How an investigation will be carried out.
- Contact during the investigation.
- How the employee can support their case.
- Explanation of what a disciplinary hearing is, including details of who should attend the hearing, how to prepare, witnesses and evidence, what will happen if further information is required, making the decision.
- The appeals process.
- The process for submitting a grievance letter and the employer’s response.
- Explanation of the rights of employees: to raise a grievance, informally or formally
for an employee whom a grievance has been raised against to state their side of the case, to be treated fairly and not be discriminated against, that all employee grievances will be investigated.
Awareness & training
Training should be given to line managers and any other member of staff who may have to handle misconduct at work to ensure that meetings, investigations and communications are carried out in a fair, appropriate and lawful manner.
The disciplinary policy should be easily accessible by all workers in the organisation to ensure certainty and clarity of standards of behaviour in the workplace. This may mean including the policy within the employee handbook.
How legal advice can help
A solicitor specialising in employment can help if you have queries about handling misconduct at work. Whether you are facing a specific case and require guidance on how to handle an investigation and disciplinary hearing, or if you are looking to review and improve your internal disciplinary and grievance policy, take professional advice to help ensure a lawful and fair disciplinary process is followed and to help promote a positive working environment.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.