EMPLOYMENT

What is Insubordination?

Insubordination is typically where an employee is disrespectful toward their employer, and/or refuses to do as they are asked.

Insubordination are issues where an employee shows unreasonable disrespect toward their employer, and/or refuses to follow basic instructions. It can be viewed as ‘minor’ or ‘serious’ (gross insubordination).

Gross insubordination can result in an employee being dismissed immediately by their employer. Simple insubordination is unlikely to result in dismissal.

Here, we examine what is insubordination; what makes it ‘gross’; remind ourselves of the basics of a disciplinary procedure; look at how any disciplinary action for insubordination might take place, and in doing so what the outcome of that disciplinary action might be. We also touch on the disciplinary investigation; the disciplinary hearing; your employer’s disciplinary procedure policy, and how ACAS may be able to help you.

What is a Disciplinary Procedure?

A disciplinary procedure is the formal basis upon which your employer can manage your conduct (‘misconduct’) or performance (‘capability’).

Is Insubordination a Conduct or Capability Issue?

Insubordination is typically a matter of conduct (not capability/performance). Because this article focuses on insubordination it leans toward matters of conduct (rather than capability). You can find tonnes of content elsewhere on our employment solicitor help pages.

Where will I find my employer’s Disciplinary Procedure?

You should find your employer’s disciplinary procedure set out as a formal policy in your firm’s ‘office manual’. As part of that, the policy should set out:-

Your employer’s formal process and procedure;
Note those things that constitute misconduct
Note those things that constitute ‘gross misconduct’ (of which gross insubordination is usually one)

The staff handbook as it’s sometimes called, is separate to a contract of employment.

What is Insubordination at work?

Insubordination at work is refusing to do something that your employer reasonably asks of you, and which you have no real reason to refuse doing, and/or treating your employer disrespectfully.

Examples of Insubordination at work

Examples of Insubordination at work might include:-

Time keeping – being consistently late and/or leaving early
Following instructions – refusing to follow basic requests/instructions
Insults – using insulting or foul words or behaviour toward your employer
Aggressive – using aggressive words or behaviour toward your employer

Examples that are NOT insubordination at work

There are moments where something may appear to perhaps be insubordination on the face of it, but is for specific reason permitted (and is therefore NOT insubordination). These might include situations where:-

Unreasonable act – your employer asks something of you that is for some reason inappropriate
Illegal – your employer asks you to perform something you believe to be illegal
Misunderstanding – you do not understand what is being asked of you
Overruled – you have received contrary instructions from a superior member of the firm’s management

What is the difference between Insubordination and Gross Insubordination?

The difference between insubordination and gross insubordination is a matter of fact. BUT, the outcome for an employee is likely to differ enormously depending upon which of the two their actions is deemed to be.

In short, acts of gross insubordination must be so serious so as to justify summary (‘instant’) dismissal. Acts of insubordination (ie not gross) are likely to be managed through less harsh outcomes (for example a formal warning letter).

Using offensive, obscene or violent language or behaviour toward your employer may be deemed ‘gross’ misconduct.

What are examples of Insubordination (not so serious to be ‘Gross’)?

Insubordination (not gross) will be issues such as timekeeping, mild language, and or acts of disrespect. They may also be acts in isolation, and/or with mitigating circumstances.

What is Considered Gross Insubordination UK?

Acts of gross insubordination can result in instant (‘summary’) dismissal and must therefore be of sufficient gravity to justify that. It might be:-

Intoxication
Physical violence
Criminal act
Foul or abusive language

Instances that show a pattern (ie are not in isolation) may be viewed in a dim light.

ACAS Code of Practice

Failing to follow the ACAS Code of Practice in any matter such as this may leave your employer liable to criticism in an employment tribunal. And, that may even result in a larger award being made against them if the matter is found in your favour (as the employee). However, failing to follow the ACAS Code of Practice does not in itself mean that a claim for dismissing you unlawfully would be successful.

ACAS Helpline

ACAS offer both employees and employers advice and guidance and may be able to help you with queries that you have regarding matters of insubordination at work.

Can my employer define their own view of Insubordination?

Yes! Businesses are free (within reason) to set the tone of their own culture. And, it is not deemed to be the role of ACAS or the employment law judicial process (employment tribunal) to impose matters of culture or brand on businesses. HOWEVER, that must be within the broad framework of the law, and see above those circumstances within which larger awards may be made against an employer if they fail to follow the ACAS Code of Practice.

Disciplinary Procedure and Insubordination

As a general rule of thumb, an employer should ALWAYS follow a process, sticking to their Disciplinary Procedure as set out in their office manual (which should in turn be in accordance with the ACAS Code of Practice).

This may of course be impacted by the nature and seriousness of the act of insubordination. But, whatever, the default position for the employer should be process process process!

So, that should include the normal procedure of informal discussion which, if unsuccessful should then be followed by a more formal process including:-

Notice in writing of the alleged issues
Notice in writing of the possible outcomes
Investigation – to gather facts/evidence around the alleged misconduct
Meeting – to deal with all sides
Outcome – notified in writing

Likely outcome for Insubordination (not so serious as to be Gross Insubordination)

Following a proper procedure, the outcome of a finding of insubordination is likely to be no more serious than perhaps a warning. And, some form of support or training may be appropriate to help the employee understand their conduct better.

Likely outcome for Gross Insubordination

By definition, gross insubordination is far more serious, and may therefore include more punitive outcomes – for example, summary (instant) dismissal.

Whether insubordination or gross insubordination, the termination of employment may well be dealt with under a settlement agreement.

What if it is not possible to conduct a full Investigation?

An employer should ALWAYS aim to follow a full and proper process when dealing with any issue of disciplinary or grievance. However, there may be times when it is neither practicable nor even possible. In those circumstances, the employer should clearly document why the normal processes have not been followed.

Never pre-judge any issue of Grievance or Disciplinary!

Whatever procedures are able to be followed they should be (followed), and then (and only then) a decision made. An employer should be seen to follow a proper process and to have not prejudged the outcome of that process until its conclusion.

What if an Employee raises a Grievance during a Disciplinary Process?

If an employee raises a grievance during the disciplinary procedure then the latter may be suspended whilst the grievance is dealt with. If it is deemed appropriate (perhaps if the two are linked) then they can be dealt with in one go.

What if an Employee resigns during a Disciplinary Procedure?

From the employer’s perspective, they would always (ideally) see a process through to its conclusion, even if an employee resigns. This is with ‘constructive dismissal’ in mind, and particularly being able to prove a correct and proper process was followed should the employee later bring a claim against the employer claiming to have been pushed out (constructive dismissal).

Should an employee refuse to take part in any such procedure, it may of course prove to be helpful evidence for the employer, if the employee later makes a claim for constructive dismissal.