Dealing with allegations of misconduct

Essentially, anything that counts as misbehaviour by an employee can be described as misconduct.

There are different types of misconduct that describe the various levels of seriousness:

• general misconduct
• serious misconduct
• gross misconduct

We explore each of them in this guide, together with the actions, communications and options available to you at every stage.

3 things to consider before starting a misconduct process…

1. Is it actually misconduct….?

Unacceptable behaviour can sometimes be an indication that an employee is being harassed, feels they’ve been unfairly treated or is suffering from an illness that they haven’t felt able to tell you about.

So, always keep in mind that there could be a reasonable cause for the employee’s behaviour and you should explore this further, in case the employee has a legitimate need for support or flexibility or a different type of action on your part.

2. Is it a performance or capability issue…?

There’s a key difference between capability processes (relating to performance stances or competence) and disciplinary ones (targeting bad behaviour).

So make sure you’re being supported by the right process before you kick it off.

Performance is all about the outcome of the employee’s work: the question of whether it’s satisfactory and/or if the employee is competent to meet the standards required.

But if your concern is more about the employee’s behaviour and/or attitude towards the doing of the work, then misconduct sounds like it’s the process you need.

3. Is the employee still in their probation period?

Employees who are still within their probation period should be considered differently.

You can’t simply instantaneously dismiss an employee on probation – except in exceptional circumstances where they’ve committed gross misconduct.

But you can follow a relatively swift process of performance review and dismissal, if they’re not achieving the levels of competence that are reasonably required to meet their job description and you do not have reasonable expectation of this position changing.

Check out our guide on how to manage employees on probation to find out more.

The different types of misconduct – a summary

General misconduct

General misconduct is where an employee has behaved incorrectly but has not done anything too serious (for example, arrived late to work several times).

If your concerns about an employee’s conduct or behaviour are relatively minor, it may be more effective to deal with them informally in the first instance.

You may be able to resolve matters there and then, without having to resort to your formal disciplinary procedure.

Serious misconduct

This is the conduct that falls between general misconduct and gross misconduct.

If an employee’s behaviour has caused serious damage to your business, but it hasn’t quite destroyed the employee-employer relationship, they’ve committed what’s known as serious misconduct.

Activities such as poor attendance and time keeping, unauthorised absence from work, being careless when carrying out work, timewasting, behaving offensively, making an excessive number of personal calls from business phones and unauthorised use of business property, could constitute serious misconduct.

However, depending on their severity and regularity they could also fall into general misconduct.

Gross misconduct

If an employee does something that is so serious it destroys the employee-employer relationship, you’re able to dismiss them rapidly, without notice and without any pay instead of notice, as long as you follow a proper and fair process of dismissal.

Instant dismissal isn’t actually instant, normally.

Even here, there’s still legal need to demonstrate a fair dismissal process – it’s rarely literally instant.

Your employment contract with the employee should make very clear what behaviour or activity constitutes gross misconduct and is therefore worthy of this escalated dismissal treatment.

Always be guided by your disciplinary policy when managing any disciplinary matter and make sure you follow it correctly.

If you don’t have a disciplinary policy you can use our template.

Disciplinary policy

Common examples of gross misconduct include:

• Serious breaches of health and safety rules
• Intoxication at work (alcohol or drugs)
• Theft or other criminal conduct
• Accepting bribes or engaging in money laundering
• Violence
• Offensive behaviour (e.g. bullying, harassment, discrimination)
• Immoral, unethical or indecent behaviour (including downloading pornography)
• Sabotage of equipment or projects
• Deliberately anti-competitive behaviour (e.g. engaging in unlawful discussions designed to fix prices or divide up customer groups or markets)
• Flagrant (gross) insubordination
• Other conduct bringing the reputation of the business into serious disrepute.

It’s not an exhaustive list.

There may be other activities, specific to your own business, that you might also want to list.

You find all the detail you need to handle any disciplinary actions that arise from misconduct in our step-by-step guide.

This guide gives you all the template correspondence that you may want to create, as you follow the steps set out in your disciplinary policy, and any related policies that may also be relevant for you in handling a particular disciplinary situation.

How to tackle employee disciplinary issues: a quick overview

It’s not always possible to know before you meet your employee how they’ll react to you raising disciplinary concerns.

The moment you raise a concern, the employee’s immediate focus is likely to be on whether their job is at risk.

They may also be very worried about their reputation and what others may say, if they learn of the process.

They may become defensive, hostile, tearful or they might even agree with you.

You’ll need to be prepared for any of these reactions.

One thing that is really important to the smooth running of this process is that the concerns are raised with the employee as early as possible, once the conduct comes to your attention and you have taken reasonable steps to verify that it is a genuine concern, (rather than something that might, e.g. have been maliciously or frivolously raised by someone else with their own agenda).

The disciplinary policy: your starting resource for misconduct by employees

Underlying any step you take in any misconduct matter should be your disciplinary policy.

This sets out your disciplinary procedure in full and it’s important both for you and the employee that you follow this to the letter.

Every business with employees (however many) should have one.

All employees should be able to access an up-to-date copy of the policy.

It must be written and presented clearly.

The terms of the employment contract with your employee will also be relevant.

Is the disciplinary policy part of the employment contract?

This will depend on the wording of the employment contract that you’ve agreed with your employee.

We recommend that you do not make the exact wording of the policy part of your contract terms.

We do recommend, however, that you include a clause in the employment contract that requires the employee to comply with all your policies, and which gives you the right to update, in your discretion, from time to time.

Suspending employees

If you need to investigate a serious or gross misconduct allegation against an employee, it may be better for the workforce, the employee in question, and the business as a whole, if the accused employee was away from the business during the process.

In cases such as this (and only if you’ve exhausted all other options such as placing the employee in a different department, for example), you can consider suspending the employee so that you can investigate properly.

Since this can be a very emotional situation for all concerned, and it is really important that you take the right steps and the right time, using the right words, we strongly recommend that you take a look at our guide on suspending an employee – before you suspend anyone.

It is also important that you carry out any workplace investigations correctly.

We have a great step-by-step guide and checklist to help you here.

Dismissal

Dismissal can be a drastic and often emotionally fraught step in any misconduct or performance procedure.

Employees on the receiving end of it often feel indignant, ashamed, outraged, angry.

A stock reaction is to challenge you and to threaten you with a claim of unfair dismissal, potentially accompanied with other ‘heavyweight’ accusations, such as unfair discrimination.

It’s by no means an easy process for either party.

But you can give yourself the best prospects of a smoother and justifiable outcome by running a robust and well organised process.

Check out our guide on dismissing employees to find out more about what you should consider.