Managing misconduct in the workplace can be a daunting task for employers, but help is at hand. In this article, we guide you through the key steps to follow to remain legally compliant, as well as provide practical tips and advice. We also review the legal protections afforded to employees who report misconduct in the workplace.
We’ll cover the following:
- Understanding workplace misconduct
- The ACAS Code of Practice and relevant workplace policies
- How to address workplace misconduct in the workplace
- Practical tips on managing misconduct in the workplace
- Building a lasting culture of transparency and trust
- Reporting misconduct in the workplace: whistleblower protections
- Penalties for getting the management of misconduct in the workplace wrong
Understanding misconduct in the workplace
Let’s start by helping to define misconduct in the workplace.
Misconduct is behaviour that breaches an organisation’s rules, or fails to meet the standards of acceptable workplace behaviour. It can cover a range of different workplace issues with varying levels of seriousness. Common examples of minor misconduct include persistent lateness, unauthorised absence and failure to follow a reasonable instruction.
Serious types of misconduct, such as theft, fraud, physical assault and sexual harassment, may be treated as gross misconduct. In this instance, employees may be dismissed with immediate effect provided a fair procedure is followed.
The company disciplinary policy should list examples of misconduct in your workplace, and whether they will be treated as minor misconduct or gross misconduct. Examples will vary depending on the nature of the organisation and the industry. For example, a breach of health and safety rules may be viewed more seriously in high-risk industries such as construction.
Misconduct is different to performance or capability issues, which apply where an employee is unable to perform their role to a satisfactory standard. This could be due to a range of different factors such as medical issues, lack of training, personal problems or lack of ability etc. Please refer to our guide How to Manage an Underperforming Employee for further information.
The ACAS Code of Practice and relevant workplace policies
The ACAS Code of Practice sets the minimum standards of fairness an employer must follow during a disciplinary process. The Code outlines the following elements of a fair process:
- Respond promptly and without unreasonable delays;
- Act consistently;
- Carry out a thorough investigation to establish the facts of the case;
- Inform employees of the basis of the problem, and give them an opportunity to put their case in response before a decision is made;
- Be aware that employees have the right to be accompanied to any formal disciplinary meetings;
- Employees also have the right to appeal against any formal decision.
Following the ACAS Code of Practice is extremely important for employers not least because an employment tribunal will consider whether the employer, as well as the employee, have followed the guidance. The Tribunal has the power to adjust any awards made by up to 25% if it is found that either party (including the employee) has unreasonably failed to comply.
Crucially, all employers should have a disciplinary policy in place outlining the procedure that will be followed if misconduct occurs, which the employer must abide by. Employers may also have other relevant policies outlining expected behaviours of employees, such as a health and safety policy, bullying and harassment policy, sick leave policy, operating procedures and a Code of Conduct.
How to address workplace misconduct
While workplace misconduct needs to be dealt with promptly, this doesn’t mean making a rash decision or firing someone on the spot. Never underestimate the importance of following the right process.
The key steps an employer must follow when managing misconduct in the workplace are as follows:
Conduct a thorough investigation
A thorough investigation should be conducted into all allegations of misconduct, to gather the relevant facts. The complexity of the investigation will depend upon the nature and severity of the allegations; however, it could include interviewing witnesses, reviewing CCTV footage and time recording data or reviewing absence reports. The investigation may also involve an investigation meeting with the employee to gather the necessary facts. While there is no legal requirement to provide advance notice of the investigation meeting, or the right to be accompanied by a colleague or trade union representative or official, it is good practice to offer both.
Consider suspension, where appropriate
Employers may consider suspending an employee while a serious disciplinary issue is investigated. For example, it may be appropriate to suspend an employee if there is reason to believe that they may destroy evidence or intimidate witnesses if they remain in work during the investigation process.
This is not a decision that should be taken lightly due to the potential impact upon the employee.
Employers should first consider alternative options to suspension, such as temporary redeployment to a different job role, team, shift pattern or location.
Suspension is normally on full pay, although this will depend upon the wording of the contract of employment. The ACAS Code of Practice states that suspension should be ‘as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action’.
Please refer to our guide Employee Suspension: Not Necessarily a ‘Neutral Act’ for further information.
Hold a formal disciplinary meeting
If it is decided that there is a disciplinary case to answer, the employee should receive a letter inviting them to attend a formal disciplinary meeting (often referred to as a disciplinary hearing). The letter should provide full details of the alleged misconduct and copies of any evidence, such as witness statements. The letter should outline the possible consequences, including whether dismissal is a potential sanction.
The employee should be informed of their right to be accompanied by a trade union representative or official or a colleague. Where practicable, the person hearing the disciplinary meeting should be different to the person who conducted the investigation.
During the meeting, the employee should be given an opportunity to explain events from their perspective, to ask questions, to present evidence, to call witnesses and to provide any mitigating circumstances.
Before a decision is made on an outcome, all the evidence should be carefully considered as well as the employee’s explanation. The decision and sanction (if any) should be confirmed in writing to the employee in a timely manner, and the employee should be informed of their right to appeal.
Disciplinary sanctions
While no action may be taken if there is insufficient evidence of misconduct in the workplace or if there is a reasonable explanation, there are a range of different disciplinary sanctions available to employers where misconduct is proven. Potential sanctions may include: a written warning, a final written warning, dismissal with notice or summary dismissal (i.e. dismissal without notice). ACAS no longer recommends including a verbal or oral warning as a sanction.
Warnings will remain ‘live’ for the period specified in the company disciplinary policy, generally six months for written warnings and twelve months for final written warnings.
Depending on the wording of the company policy, sanctions may also include a transfer or demotion, or a requirement to attend further training. Sometimes mediation is recommended and can be a useful where the misconduct involves conflict with a colleague or line manager, as it provides a way of rebuilding the relationship. However, mediation only works where both parties are engaged and should not be used as a sanction.
The sanction issued must be proportionate to the misconduct that has occurred. Summary dismissal will only be justified in the most serious of cases, where gross misconduct in the workplace has been proven.
Short service dismissals
Although statutory protection from unfair dismissal only applies to employees with two or more years’ continuous service, this not does give employers scope to lawfully dismiss an employee who has short service without consideration. For information on short service dismissals and the exceptions that apply, please refer to our guide Dismissing Staff with Short Service: FAQs.
The right to appeal
An employee may submit an appeal if they believe that the disciplinary decision or sanction is wrong or unjust. This should be made in writing, outlining the grounds for the appeal.
The employee should receive a written invitation to attend an appeal hearing and should be notified of their right to be accompanied by a trade union representative or official or a colleague. Where practicable, a person should be appointed to hear the appeal, who hasn’t been involved in the investigation or disciplinary process to date.
The role of the appeal officer is to assess whether the correct procedure was followed, and that the outcome was fair. The appeal officer may carry out further investigations if necessary and will either confirm or overturn the original decision and sanction. Following the appeal hearing, the employee should be notified in writing of the results of the appeal as soon as possible.
Practical tips and advice on managing misconduct in the workplace
To make the process as stress-free as possible, here are our top tips for managing misconduct in the workplace.
1. Policies and procedures
Ensure you have a disciplinary policy in place and ask all your employees to read it. The policy should outline the disciplinary procedure and should provide examples of minor misconduct and gross misconduct. Furthermore, make sure your employees understand the expected standards of behaviour by documenting expectations in relevant policies and procedures. This ensures that employees are aware of the expectations of them and know what to expect if they are involved in a disciplinary process.
2. Early intervention
In our years of experience, we often see cases where a minor problem has been left unmanaged and has escalated into something more serious. Many misconduct issues can be avoided if they are addressed at an early stage with an informal conversation. For example, the next time you notice that an employee has been late on a couple of occasions, discuss it with them at their next one to one meeting and set clear expectations for the future. In most cases, this will be enough to nip it in the bud and is far simpler than going through a misconduct process.
3. Remain objective
Employers should remain open minded at all times, and genuinely consider alternative explanations provided by the employee. We often find that disciplinary processes that seem straightforward at the outset, are often far more complicated or nuanced than initially thought.
4. Training
Managing misconduct in the workplace can be a stressful experience for line managers, who may be worried about saying the wrong thing, making the wrong decision or defending an employment tribunal claim. Line managers should receive training and coaching to enable them to develop the confidence, skills and capability to manage complex disciplinary processes.
5. Record keeping
It’s imperative that employers keep accurate records of disciplinary processes, as these will be vital if the employee submits an employment tribunal claim. This includes detailed notes of all meetings, copies of all communications (letters, emails, texts, notes of phone calls) and copies of all evidence relied upon to reach a decision on the outcome of the process.
Building a culture of transparency and trust
To nurture a lasting culture of transparency and trust, employers must treat their employees fairly and respectfully. This involves setting clear expectations of standards of behaviour, early intervention where appropriate, treating employees consistently, and remaining open minded and objective during misconduct processes. Furthermore, employers must ensure they do not discriminate against employees with protected characteristics.
Concern for the health and wellbeing of any employee involved in a disciplinary process must always be considered. Employers should act with compassion, and with an understanding of the impact on the employee. It’s advisable for employers to provide access to counselling services, for example via an employee assistance programme.
Reporting misconduct: whistleblower protections
UK law grants significant legal protections to employees who report misconduct in the workplace. Whistleblower protections apply where an employee has made a qualifying disclosure of information about:
- a criminal offence;
- a failure to comply with a legal obligation, for example if an employer has neglected their duty of care towards children in a care home;
- a miscarriage of justice, for example if an employee is dismissed for something that turns out to be a computer error;
- someone’s health and safety being in danger, for example if an employer requires its workers to serve contaminated food;
- damage to the environment; or
- deliberate concealment of information relating to any of the above listed examples.
To claim protection, whistleblowers must show that they made a qualifying disclosure, and they were dismissed or suffered a detriment as a result of making the disclosure.
Penalties for getting it wrong
Employment tribunal claims are extremely costly, time-consuming and stressful to defend, which is why it’s so important to manage misconduct in the workplace appropriately. Employers that mismanage misconduct run the risk of an employment tribunal claim, such as a claim for unfair dismissal, wrongful dismissal or discrimination. In 2021/2022, the average award for unfair dismissal was £13,541 compared with £26,172 for disability discrimination. There is no upper limit on the amount of compensation that can be awarded in unfair dismissal claims under whistleblowing legislation.
How we can help
If you need advice on handling misconduct in the workplace, please contact our team on 0330 223 5253 or office@fitzgeraldhr.co.uk. We would be delighted to help you.
Further reading
We hope you found this article useful. You may also find the resources below helpful.
