Fostering a harmonious work environment is vital for success. However, even in the most well-run businesses, issues related to employee misconduct can arise. That’s why understanding what constitutes misconduct, how to handle it and how to distinguish it from gross misconduct is important for any business owner or HR professional.
In this guide, we'll explore these topics from a UK law perspective, equipping you with the knowledge needed to navigate employee misconduct at work.
What is misconduct at work?
Misconduct at work refers to any employee's unacceptable behaviour or violation of company policies. It encompasses a wide range of actions, from relatively minor infractions to more serious breaches of conduct. While the specifics can vary from business to business, examples of misconduct include:
- Breach of company policies – this can involve ignoring minor safety regulations, violating the code of conduct or breaching Confidentiality Agreements
- Insubordination – when an employee refuses to follow instructions or displays a disrespectful attitude towards colleagues or superiors
- Unexcused absence – repeatedly failing to show up for work without valid reasons or turning up late
- Time theft – clocking in or out for a colleague, inflating hours worked or engaging in other forms of dishonesty related to time tracking (although, depending on the circumstances, this might constitute gross misconduct)
- Subpar performance – consistently failing to meet job requirements despite adequate training and resources (although it’s worth noting that poor performance is often dealt with under your internal poor performance procedures)
How to deal with misconduct at work
Addressing misconduct promptly and fairly is important to maintaining a productive work environment. Here are some steps to help you handle it effectively:
1. Investigate thoroughly
Before taking any action, conduct a fair and impartial investigation. Gather all relevant information, including statements from involved parties and any supporting evidence.
2. Hold a disciplinary meeting
Write to the employee to invite them to a private meeting to discuss the allegations of misconduct, setting out in the letter who they may bring with them, what the allegations are and what might happen if the allegations are deemed to be true. At the meeting, clearly state the concerns, allow the employee to provide their perspective, gain witness evidence and explore potential solutions.
3. Consider disciplinary action
Depending on the severity of the misconduct, you may issue written warnings, provide additional training, or implement other appropriate disciplinary measures per your company's policy.
4. Document everything
Keep detailed records of the misconduct issue, the investigation process and the actions taken. This documentation is crucial if further action is required. Ensure you adhere to your own misconduct rules and procedures and the ACAS Code of Practice on disciplinary and grievance procedures.
What is gross misconduct at work?
Gross misconduct goes beyond regular misconduct; it involves severe breaches of workplace rules and often leads to immediate dismissal without notice or pay in lieu of notice (having followed the proper procedure). To differentiate between the two, consider the gravity of the offence. Gross misconduct examples include:
- Theft or fraud – stealing from the company, clients or colleagues
- Violence or threats – physically assaulting others or making serious threats
- Sexual harassment – engaging in inappropriate conduct of a sexual nature
- Serious health and safety breaches – deliberate actions that endanger the safety of others
- Serious breach of confidentiality – sharing sensitive information without authorisation
What are the procedures for gross misconduct at work?
Addressing gross misconduct necessitates a swift and firm response. You should follow the normal procedures for misconduct, but in addition, you should consider:
1. Suspension
In cases of serious misconduct, you may be able to suspend the employee pending investigation to prevent further harm.
2. Immediate dismissal
If the gross misconduct is confirmed, you may be able to dismiss the employee without notice or pay in lieu of notice. However, ensure you follow proper procedures and maintain a transparent process.
Does gross misconduct always lead to dismissal?
While gross misconduct often results in summary dismissal, the specifics can vary. Employment law requires you to act reasonably, considering all circumstances, before deciding on dismissal. An Employment Tribunal may review the case if the employee challenges the decision.
What’s the difference between misconduct and gross misconduct?
Distinguishing between misconduct and gross misconduct is important, as the severity of the breach can significantly impact the course of action taken by employers. Let's delve into the key differences:
1. The severity of the offence
Misconduct generally refers to less severe breaches of workplace rules or policies. These can include actions like persistent lateness, insubordination, or breaches of company policies.
Gross misconduct, on the other hand, involves much more serious and egregious violations that strike at the heart of the employment relationship and can have severe consequences. Examples include theft, violence, sexual harassment and serious health and safety breaches.
2. Immediate dismissal
While misconduct should be addressed promptly, it typically doesn't lead to immediate dismissal without prior warnings. Gross misconduct often justifies summary dismissal, meaning the employee can be dismissed without notice or pay in lieu of notice due to the gravity of the offence.
3. Impact on trust and safety
Misconduct can erode trust and disrupt the workplace, but it may not pose an immediate threat to the safety or well-being of colleagues or the business. Gross misconduct usually involves actions that pose a significant risk to others' safety, damage trust irreparably, or result in significant harm to the business.
4. Subjectivity
Misconduct cases often involve a degree of subjectivity, as what constitutes misconduct can vary from one workplace to another. Gross misconduct cases typically involve more objectively grave actions universally seen as unacceptable in the workplace.
5. Legal implications
Handling misconduct typically involves following internal disciplinary procedures and may lead to written warnings, suspension, demotion or other disciplinary actions as outlined in your company's policies. Dismissal may follow, but only after repeated misconduct (usually for the same offence).
Gross misconduct can have severe legal consequences. Employers must still follow a fair and transparent process, but the severity of the offence may justify immediate dismissal with no prior written warnings or misconduct on the employee’s file. However, ensuring that the dismissal process is legally sound is crucial to avoid potential claims at an Employment Tribunal.
The ACAS Code of Practice
The Advisory, Conciliation and Arbitration Service (ACAS) plays a significant role in guiding employers and employees on various employment-related matters, including handling workplace misconduct. Their Code of Practice offers valuable insights and best practices to help businesses effectively manage misconduct issues while adhering to legal requirements.
Get legal assistance from LawBite
Navigating the complexities of workplace misconduct and its legal implications can be daunting for small businesses. However, at LawBite, we're here to simplify the process, offering you practical and tailored legal solutions to address these challenges effectively.
Our commitment to doing law differently means that we're not just a legal service provider; we're your trusted partner in protecting your business and ensuring it's positioned for success. Here's how we can support you:
Drafting policies and documentation
Crafting clear and comprehensive policies and documentation for workplace misconduct is the first line of defence. Our employment lawyers can create custom-tailored documents, such as staff/employee handbooks, that align with your business needs. With our assistance, you can establish robust guidelines that prevent misconduct and provide a strong foundation for addressing any issues that arise.
Legal advice for disciplinary procedures
When faced with misconduct issues, having the right legal advice is essential. Our employment lawyers can offer expert legal guidance on handling disciplinary procedures fairly and transparently. They can help you navigate the nuances of each case, ensuring your actions align with legal requirements and best practices.
Employment Tribunal guidance
In cases that escalate to an Employment Tribunal, you can count on our lawyers to provide robust guidance. We’ll stand by your side, advocating for your business's interests and ensuring you have the best possible outcome.
With LawBite, you benefit from our customer-centric approach, built on trust, transparency and exceptional service. We understand the unique challenges that small businesses face and are dedicated to empowering you with the legal solutions you need.
Don't let workplace misconduct disrupt your business operations or leave you vulnerable to legal risks. Book a free 15 minute consultation with one of our expert lawyers today or call us on 020 3808 8314.
