Good employee conduct is an essential part of running a successful company. If issues arise, you need to deal with it correctly. That way, it sends a message to your other employees that you won't stand for this form of behaviour.
So it's vital you understand the difference between misconduct and gross misconduct, and the potential punishments available. Failure to get it right could lead to claims of unfair dismissal being raised against you.
In this guide, we'll discuss what misconduct is, common examples, and how you can manage it correctly in your workplace.
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What is misconduct in the workplace?
Misconduct in the workplace is behaviour that is below or breaches the standard set out by the employer in their contract. This behaviour can have a negative impact on their work, their co-workers, and the company as a whole.
To successfully manage it in your company, it's important to know the different types.
Different types of misconduct at work
Workplace misconduct can fall into one of three main categories, so you must become familiar with them. This may vary depending on the industry or nature of your business.
For example, health & safety breaches may be more important to a manufacturing business because of the serious health implications they can lead to.
So, let's discuss them both in more detail:
Minor misconduct
Also known as general misconduct, this behaviour can be in any way intended to harm the company or a person.
Instances of minor misconduct is likely to damage the working relationship in some way, but way not necessarily enough to break it.
Serious misconduct
Serious misconduct are any actions that bring the effects of destroying or undermining the relationship of trust between employer and employee.
Gross misconduct
Gross misconduct is more serious misconduct that breaks the professional code of conduct laid out within their employment contract or handbook. This behaviour is usually enough to break the working relationship past the point of repair.
Often gross misconduct can break the trust and confidence between employer and employee. And as such, the punishments for said misconduct are often firmer.
Examples of misconduct at work
No list will fully cover what misconduct is due to the variances between industries. There are many different acts that can be considered misconduct in the workplace. However, it's important to know which are minor and which are gross misconduct.
Understanding them will help you to discipline your employees accordingly.
Examples of minor misconduct
Minor misconduct examples are:
- Frequent lateness.
- Missing deadlines and frequent errors.
- Failing to follow managerial instructions.
- Using inappropriate language.
- Wearing incorrect or inappropriate clothing.
- Disrupting other employees.
Examples of gross misconduct
Occurrences of gross misconduct can lead to damage to your company, clients, and even employees. It's important you become familiar with examples of gross misconduct:
- Theft or fraud.
- Gross negligence or serious insubordination.
- Physical violence.
- Bullying.
- Harassment or virtual harassment.
- Sexual harassment.
- Serious breaches of company infrastructure, such as computers or the internet.
- Disclosing confidential information.
- Violating health & safety procedures.
- Alcohol or illegal drug use.
- Falling asleep on duty.
Are repeated instances of minor misconduct lead to gross misconduct?
Yes, if an employee regularly commits the same minor misconduct it may lead to gross misconduct. Especially if the behaviour is starting to have an effect on the rest of your workforce and company.
You need to make sure the dismissal isn’t for misconduct.
It's advisable to use your judgment and take it on a case-by-case basis.
Is minor and gross misconduct handled the same way by employers?
Yes, minor or gross misconduct can both be dealt with formally. However there can be more severe punishments being handed down for gross misconduct.
How to address minor misconduct
It's important you deal with incidents of minor misconduct correctly. Failure to do so can lead to claims being raised against you in the future.
Remember, not all these steps will be required if you feel the conduct doesn't warrant more formal proceedings. It's important you take each case on its merit.
Let's discuss the process in more detail:
The misconduct being raised
The first stage is the issue initially being raised to the attention of the employee's line manager, yourself, or a member of the human resources department.
Hold an informal discussion
For any one-off incidents of minor misconduct, sometimes an informal talk will be warranted. For example, if an employee is late to work. This may help to find out any mitigating factors behind the misconduct issues.
Most of the time, the informal approach is the best way to stop misconduct from becoming a regular occurrence. Sometimes, minor misconduct needs to be dealt with formally. Don’t assume all minor misconduct should be dealt with in an informal manner.
Carry out an investigation
If an informal conversation has failed to curb the behaviour, you may choose to carry out an investigation. Simply, this is a fact-finding task to collect any evidence and witness statements surrounding the conduct.
Following the completion of the investigation, you may choose to have an informal conversation with the employee. However, you should review all the information and decide on the most appropriate way to move forward. Whether this be an informal conversation or a formal disciplinary hearing.
Carry out a disciplinary hearing
The next step is to hold a disciplinary hearing if required. This is your chance to present any evidence, accounts or witnesses relating to the misconduct allegation.
The employee needs to be given the opportunity to present their case, and ask any questions. They can be accompanied to the hearing, but cannot answer any questions on the employee’s behalf.
Provide the outcome
If you have exhausted all other avenues and the employee's conduct has failed to improve, you may be left with no choice but to take disciplinary action.
A formal is an option that you can take. The formal warning should be given in writing. These warnings should clearly explain what improvements are expected of them.
Any warning handed out should remain on the employee's file.
In many cases, the outcome of minor misconduct is the employee being aware of their behavioural issue and being made aware of how to improve. You should review the misconduct in six months to see if it's been solved.
How to address gross misconduct
To address gross misconduct, a formal disciplinary process must be followed. This is because the misconduct is often so severe that it's too far gone to be handled informally. Remember the employee is facing career threatening allegations, so you must stick to the correct process.
Gross misconduct is a serious breach of employment contract, you should act accordingly. Let's discuss how you should do it in more detail:
Communicate the allegation to the employee
The first stage is to make the employee in question aware of the allegation being put before them. This would make up part of the investigation invite letter.
This should be done in writing, and should include the following:
- Full details of the alleged misconduct.
- Full explanation of the disciplinary process.
- Possible outcomes.
Conduct an investigation
You must carry out a thorough investigation into the alleged misconduct. This includes taking statements from any witnesses and establishing all the facts surrounding the issue.
Formal disciplinary hearing
You may feel the only way to deal with the alleged misconduct is to undertake formal What action you choose to hand out depends on the outcome of the disciplinary meeting.
The process of the meeting is as follows:
- Introduce the people at the hearing. Including the employee, the employer, note taker, employee representative, and witnesses.
- The employer explains the alleged misconduct
- Witness statements, and any other evidence is presented.
- The employee gets chance to answer any allegations, ask questions or call relevant witnesses.
- The employer makes the employee aware of when they should expect a decision.
The employee also has a statutory right to be accompanied to the meeting by a work colleague or trade union official. However, they cannot answer any questions on behalf of the employee.
Provide the sanction
You must provide the employee with the outcome of the hearing in writing and without unreasonable delay. When deciding on which disciplinary action to give to the employee, you must carefully consider all the circumstances.
It's important that you're not too firm or too lenient with the employee.
Sanctions that can be handed down are:
- Formal warning.
- A final written warning.
The outcome letter should include the sanction chosen, the reasons why you've chosen that punishment, and how they can appeal your decision.
Can you instantly dismiss an employee for gross misconduct?
Yes, you can dismiss an employee straight away for gross misconduct. However, you would still need to conduct the investigation and disciplinary.
You may choose to instantly dismiss employees if they're guilty of either theft or violence. To dismiss an employee instantly, you must follow a fair procedure. To do this, you also need to follow a fair investigation and disciplinary process.
How to make sure the dismissal is fair
As an employer, any dismissals must be fair. So if an employee's misconduct warrants dismissal, you need to meet the following standards:
- Be able to show you had reasonable grounds for believing they committed misconduct.
- Be able to show you carried out an investigation into the alleged misconduct.
- Be able to show the dismissal was legally justified based on the nature of the misconduct.
It's important to remember that sufficient evidence is required when instantly dismissing an employee.
Can an employee appeal the misconduct decision?
Yes, employees are within their right to appeal against any misconduct decision made. You should make them aware of this when you're communicating the outcome chosen.
Their appeal should be made in writing, and you should arrange an appeal hearing without unreasonable delay. An investigation should be carried out, with any new evidence taken into account.
The process you follow must match the contractual procedure as laid out in their employment contract.
Should you keep a record of employee misconduct?
Yes, it's important that you document and keep a record of any instances of misconduct on an employee's file. This can prove to be important if the employee raises a claim against you in the future.
You should include any evidence and documentation that led you to make your decision.
How to prevent employee misconduct in the workplace
As an employer, it's important that you don't allow incidents of employee misconduct to become regular. Although that isn’t always possible, there are many things you can do to prevent it from happening often.
Let's discuss them in more detail:
Create a clear disciplinary policy
A clear disciplinary policy will help your employees to understand the severity of misconduct and what the consequences are.
It should explain all the possible disciplinary outcomes for all forms of misconduct, the steps that will be taken, and what actions may lead to instant dismissal.
Use the policy to remind other employees that misconduct of all forms won't be tolerated in your company.
Make sure it's signed by all employees before starting employment, and included in your handbook.
Make it clear how to report misconduct
You must make it clear to all your employees how to report misconduct. The only way it can be resolved is if you're made aware of an employee's actions, so it's essential they know.
Within your policy you should make employees aware that misconduct can be reported anonymously, and without any retaliation.
Investigate all claims of misconduct
As an employer, you have a responsibility to investigate all claims of misconduct in your company.
Failure to investigate all occurrences can be a stain on an employer's reputation. This may lead to a hostile work environment, as well as an increase in employee turnover and resignations.
It's important to show all your employees that you take any instances of misconduct seriously.
Document everything related to the misconduct
It's vitally important you document everything related to the misconduct issue and the following investigation. You never know when a claim may be raised against you and the evidence will be required.
Make sure you document the exact dates, times, places, and any conversations related to the misconduct.
Act quickly over misconduct
You must act quickly to resolve any issues of misconduct before they become a bigger issue in your company. Failure to do so can lead to your employees' confidence in you decreasing, as well as the potential for further misconduct to take place.
Don't be afraid to get external support
If you're struggling to resolve the issue or you feel an impartial investigation isn't possible, then consider getting a third party to help with the investigations and hearing.
This is a particularly good idea if you're dealing with a specific form of misconduct for the first time.
Train your employees
Make sure you provide your employees with the correct training on what your company expects from their conduct. The training should also help to make them aware of how their conduct can affect their colleagues and the business.
It's important you train your senior staff and managers on how to deal with certain types of misconduct that may be difficult to solve. For example, workplace bullying.
Make sure you provide annual refresher training so you can update your employees on any new rules or legislation.
Can you be taken to an employment tribunal over misconduct?
Yes, you can be taken to an employment tribunal over how you've handled misconduct in your business.
Employees can make a claim of unfair dismissal if you chose to terminate them and you didn't follow a fair procedure. You may also face claims of discrimination being made against you if you treat someone less favourably due to them holding a protected characteristic, such as disability.
Employee misconduct outside of work
Sometimes, employees may commit misconduct whilst they're outside of work. Common examples of these include inappropriate use of social media..
If this is the case, you must act swiftly. This can include following a disciplinary process the same way you would other forms of misconduct and disciplining the employee. If you're unsure on how to deal with misconduct outside of your company then it's advisable to seek advice.
Get expert guidance on misconduct with Peninsula
Employee conduct is a vital part of any business, no matter its size. So, you must deal with all forms of misconduct correctly. Failure to do so can lead to claims of unfair dismissal being raised against you.
You need to understand the difference between misconduct and gross misconduct, with the potential punishments available.
Peninsula offers expert guidance on misconduct of all forms. Our HR team offers 24/7 HR employment advice which is available 365 days a year. We also provide advice through multi-lingual support and fully trained counsellors who are ready to help.
Want to find out more? Contact us on 0800 028 2420 and book a free consultation with an HR consultant today.
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