Misconduct at work: a guide for employers | myhrtoolkit

Employees committing misconduct at work is an issue most employers are likely to face at some stage. This post from senior employment lawyer Matthew Ainscough looks at particular types of misconduct, as well as whether to deal with misconduct in an informal or formal way and the basic formal procedure employers should follow.

What is misconduct at work?

Misconduct is essentially behaviour that falls below the standard expected by an employer. Here are some common types of misconduct that employers might encounter:

Refusal to follow instructions

It is an implied term in every contract of employment (in other words, not necessarily written within the contract document) that an employee will follow their employer's reasonable instructions. Therefore, the dismissal of an employee for refusing to obey such an instruction may be a fair dismissal for misconduct.

Learn more: What are the 5 fair reasons for dismissal?

Fighting

As with any conduct dismissal, the employer should consider all the circumstances as well as any mitigating circumstances.

Swearing and abusive language

As with fighting, the employer should carefully consider all the circumstances, including the context in which the language was used, as well as any mitigating circumstances.

Dishonesty, theft, and fraud

It will usually undermine trust and confidence if an employee lies to their employer unless it is dishonesty of a very trivial nature.

Theft of money

Deliberate theft of money is serious misconduct.

Breach of the duty of fidelity

Typically, breach of the duty of fidelity may occur where the employee:

• Discloses confidential information
• Competes with the employer
• Solicits employees, customers, or suppliers

Learn more: What is a non-compete clause?

Circulating confidential information

It would usually be considered misconduct (and sometimes gross misconduct) for an employee to disclose confidential documents to third parties (including other employees) without permission. This could also constitute a GDPR breach if personal identifiable information has been shared without permission.

Bribery

Bribery and other forms of corruption are taken very seriously by most employers, as giving or receiving a bribe will often amount to a criminal offence. Therefore, it is likely to amount to gross misconduct.

Abuse of sick leave

It will usually be considered misconduct or gross misconduct for an employee to take sick leave or claim sick pay when they are fit for work. This can include issues such as absenteeism and unauthorised absence.

Drinking or taking drugs at or outside work

As with swearing and fighting, the employer should consider all the circumstances as well as any mitigating circumstances or health issues.

Misuse of computers

The following are examples of behaviour that could amount to the misuse of work computer systems:

• Excessive internet use
• Inappropriate emails
• Downloading or distributing indecent or offensive material
• Downloading unauthorised software

Gross negligence

Gross negligence is a really serious failure to achieve the standard of skill and care reasonably expected from an employee and is the exception to the general rule that gross misconduct must be deliberate and wilful.

Conduct outside work

It may be fair to dismiss an employee for conduct outside of the workplace, provided that the conduct affects or impacts on the employee’s job or their ability to do their job or has the potential to damage the employer’s reputation. For instance, in the past few years there has been an increase in legal cases around employees damaging their employer’s reputation on social media.

Learn more: Social media employment screening: should you screen candidates and staff?

What is gross misconduct?

The term "gross misconduct" means the most serious types of misconduct, such as theft or violence, warranting instant dismissal, i.e. without prior warnings or notice. Gross misconduct would usually involve either deliberate wrongdoing or gross negligence.

It is important to remember that different employers will take different approaches to whether or not something is misconduct or gross misconduct. For example, in a workplace where health and safety is very important such as a hospital, breach of a health and safety policy is likely to be taken far more seriously than in other organisations.

Learn more: What are the main health and safety responsibilities of employers?

Addressing misconduct: formal or informal?

The employer will need to consider whether a formal investigation and disciplinary proceedings are necessary. In the majority of circumstances, having an informal "quiet word" with the employee will be all that is needed.

Informal discussions and warnings

Informal discussions tend to be most appropriate where an employee has committed misconduct for the first time in relation to a matter that is not particularly serious (for example, attending work late on the odd occasion). If this approach doesn’t work, a more thorough investigation may be needed. This will involve the employer keeping records of the lateness in order to provide evidence at a disciplinary hearing.

However, an employer should make sure that the employee knows that a formal process could commence if the problem persists, or the required level of performance is not maintained.

Informal warnings

If a warning is given at this initial stage it should be verbal and ‘informal’, so an employer should try to avoid confirming the informal warning in writing (as it is arguable that doing so would make the warning a formal written warning in all but name!) In addition, informal warnings should not form part of an employee's disciplinary record or be considered in future disciplinary proceedings.

However, managers should keep a note of informal discussions with employees and any informal verbal warnings they have given, because a failure to record informal warnings and discussions may also create problems in evidencing that an employer's disciplinary process has been followed.

Conducting a formal disciplinary process

If informal action has not resolved an issue, or if the issue is too serious for informal resolution, the employer will need to start a formal process.

Broadly speaking, a formal process will involve:

• Identifying the allegation or allegations against the employee and confirming them to the employee in writing
• Investigating the alleged misconduct
• Considering whether or not it is necessary to suspend the employee
• Conducting a disciplinary hearing (if the investigation concludes that there is a case to answer)
• Allowing the employee to be accompanied to a disciplinary hearing by a trade union representative or work colleague
• Communicating the disciplinary hearing outcome to the employee in writing
• Providing the employee with a right of appeal

Appeals against misconduct

These are the main points to bear in mind when dealing with an employee’s appeal against a misconduct-related disciplinary or dismissal:

• The employee should be asked to provide their full grounds of appeal in writing and any appeal should be heard without unreasonable delay
• The employer should ensure that it complies with the appeal requirements set out in any contractual procedure
• An appeal should be dealt with impartially by someone not previously involved in the case and ideally, the person hearing the appeal should be more senior than the person responsible for making the initial decision
• The appeal can be a review of the decision or a full rehearing
• Employees have the right to be accompanied at a disciplinary appeal by a trade union representative or work colleague

Document employee misconduct with software

Myhrtoolkit can assist employers dealing with misconduct issues by recording and storing key documents, making it easier to organise any informal/formal warnings and information around the disciplinary process to prove compliance at every stage.

Track misconduct procedures and store key documents and information with document management software.

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