EMPLOYMENT LAW

Misconduct at Work

Misconduct in the workplace is the stuff employees do ‘wrong’ that can lead to disciplinary proceedings. Here, we cover those questions you might have about misconduct in the workplace. What is misconduct at work? What is gross misconduct? Who brings a claim for misconduct at work? All of your employment law queries and more! If we have not covered your misconduct questions in this section, do please make contact with one of our specialist employment law solicitors. You can email us at info@qlaw.co.uk or call us on 03300 020 365!

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Misconduct at Work FAQs

Misconduct is where an employee behaves inappropriately or breaks the rules of their workplace, such as committing a disciplinary offence listed as misconduct in the employer’s disciplinary policy. Misconduct includes breaking workplace rules, such as being persistently late, minor insubordination, and sometimes poor performance is included as a misconduct issue (though we’d suggest that performance is dealt with in a separate performance management policy). Depending on the seriousness of the offence, it may be reasonable to suspend the employee pending an investigation and disciplinary procedure.

Gross misconduct is really serious misconduct at work. Gross misconduct can include serious misbehaviour like theft, physical violence, gross negligence, serious insubordination, being under the influence of alcohol or non-prescription drugs at work, sending or sharing inappropriate emails or content, harassment or sexual harassment. Other types of gross misconduct are often listed in the employer’s disciplinary policy and can include types specific to the employer’s business. Because of the seriousness of the allegations, where an employee is accused of gross misconduct, it will usually be reasonable to suspend the employee pending an investigation and disciplinary procedure.

Gross misconduct is misconduct that is more serious than “ordinary” misconduct. Gross misconduct will therefore usually lead to more serious warnings or sanctions, perhaps dismissal or summary dismissal without notice or payment in lieu of notice.

Examples of gross misconduct would include theft, physical violence, gross negligence, serious insubordination, being under the influence of alcohol or non-prescription drugs at work, sending or sharing inappropriate emails or content, harassment or sexual harassment. A disciplinary policy should set out examples of behaviour that will usually be regarded as gross misconduct. In essence, gross misconduct is something so serious that it undermines the relationship of trust and confidence that should exist between employer and employee.

Examples of misconduct would include breaking workplace rules, such as being persistently late, minor insubordination, and sometimes poor performance is included as a misconduct issue (though we’d suggest that performance is dealt with in a separate performance management policy).

The short answer is, potentially, yes. Usually, without more, an act of “ordinary” misconduct won’t lead to a fair dismissal. However, aside from the fact that employees with less than 2 years’ service don’t have unfair dismissal rights, so the risks attached to dismissing them without a fair reason are lower for an employer, you can’t stop an employer dismissing if they want to. In answer to the question of whether you can get fairly dismissed for misconduct, that will depend on whether you’ve got any previous disciplinary warnings still active on your record, especially previous warnings for similar misconduct. If you do, it’s more likely the employer can fairly dismiss you for misconduct, because part of that will be that you’ve repeated previous offences, and it’s fair to escalate to the next level of sanction under the disciplinary procedure.

You should always co-operate with the employer’s procedure – it’s your chance to put your side of the story forward. Ask for full written details of the allegations before any disciplinary hearing, so you can fully prepare your response. You should be able to refer the employer to witnesses who may be able to shed light on what happened. You are entitled to be accompanied by a work colleague or trade union representative at any disciplinary hearing. If you aren’t happy with the eventual decision, you should be permitted to appeal. And of course, getting legal advice as early as possible is a good idea, to help you best defend yourself and aim to get the lowest sanction possible or perhaps to try to negotiate a deal to extract you from the situation without going all the way through the disciplinary and potentially being dismissed.

Before suing or bringing a claim for false accusations, your first step is more likely to be to appeal against your dismissal or the imposition of another disciplinary sanction or warning. Alternatively (or as well, in some cases), it may be worth raising a formal complaint or grievance about what has happened. In any case, you are usually required to have tried to resolve matters by using the employer’s internal procedures before bringing a claim.

If you are dismissed (or summarily dismissed) for gross misconduct, and feel this was unjustified, you may be able to bring an Employment Tribunal claim for unfair dismissal, if you feel that the employer did not have enough evidence to show on balance that you did the act(s) you were accused of. You could also claim unfair dismissal if the employer failed to follow a fair procedure, for instance if they didn’t investigate properly. Before you bring a claim in the Employment Tribunal, though, you have to go through Acas Early Conciliation, to see if the parties can agree a settlement deal without the need for an actual claim.

In most cases, before you can bring a claim in the Employment Tribunal, you have to go through Acas Early Conciliation, to see if the parties can agree a settlement deal without the need for an actual claim. If Acas Early Conciliation fails to lead to a settlement, Acas will issue a certificate that enables you to start an Employment Tribunal claim.

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