Professional Misconduct

16 April 2019

Employers must fully understand the rules on minor and major misconduct in the workplace.

It’s vital to remember that misconduct behaviour needs to be dealt with through appropriate disciplinary policies and procedures.

You should hold zero-tolerance for professional misconduct in your business. If your employees or managers are accused of unethical and unprofessional behaviour, you need to deal with it swiftly.

If not, you may run the risk of unfair and unlawful treatment. This means your business could be taken to court, resulting in costly legal fees and damage to your brand-name.

In this guide, read about minor and gross misconduct,; meanings and rules for them,; and the legal methods for disciplinary procedures.

What is misconduct in the workplace?

When an employee behaves inappropriately or breaches workplace rules, it’s known as professional misconduct.

This can be categorised into two types of misconduct: - minor and gross misconduct.

Minor misconduct

Minor misconduct happens when an employee commits an act which is unacceptable, but not criminal. These cases sometimes occur because of misunderstandings or inexperience; and can be dealt with informally.

Here are examples of minor misconduct in the workplace:

• Being regularly late.
• Being constantly absent.
• Sleeping at work.
• Missing targets and deadlines.
• Disregarding instructions from supervisors and line-managers.
• Not following workplace practices properly.

Gross misconduct

Gross misconduct is behaviour classed as inappropriate and is done deliberately or through gross negligence.

These are serious allegations of misconduct; and employees can face immediate suspension or dismissal – even without notice.

Examples of Gross misconduct in the workplace are:

• Fraud and theft.
• Serious misuse or damage to company property or name.
• Inability to work due to intoxicants or illegal drugs.
• Accessing pornographic or offensive materials.
• Serious disobedience.
• Causing damage or injury through serious negligence.
• Physical violence, discrimination, or bullying.
• Serious breach of health & safety.
• Serious breach of confidence.

What is the difference between misconduct and gross misconduct?

Gross misconduct actions breach fundamental company rules. And in some cases, they’re serious enough to action dismissal – even if it’s for the first time.

With minor misconduct, you can normally issue a warning and give employees a second chance.

Another difference is the notice pay. In some cases of dismissal for gross misconduct, the accused could face employment termination without a notice period or pay.

Misconduct at work examples

A worker accidently spills cleaning liquid on the shop floor. They fail to follow the correct safety procedure to properly clean up the spill. This counts as minor misconduct and could be dealt with through a verbal warning.

An employee breaches company policies by leaking confidential data online. The act goes against regulations and legislation on data protection.

This counts as gross misconduct as it was done deliberately and could lead to a dismissal.

Misconduct law and regulations

In the workplace, there is no specific law on minor and gross misconduct in Ireland.

Irish employment law states employers should set out disciplinary and grievance procedures within their business.

These rules should comply with the Workplace Relations Commission (WRC) Code of Practice on Grievance and Disciplinary Procedures.

The Code is not legally binding. However, if you disregard the Code, it can be used as evidence against you in the WRC, Labour Court, and other court proceedings.

How to report misconduct at work?

Through your business policies, everyone should be aware of disciplinary procedures for serious offences and consequences which follow.

You should have different policies that outline minor and serious employee misconduct, and disciplinary procedures. You must make them available to all staff through handbooks and contracts.

The Code of Practice on Grievance and Disciplinary Procedures (2000) outlines rules for disciplinary procedures. Complying with the rules ensures you follow a fair process and natural justice.

If an employee feels their dismissal was unlawful, they could raise their claim to the WRC. You could be guilty of unfair dismissal, especially if rights and entitlements weren’t met.

Dealing with minor misconduct

These cases can be dealt with informally after they’ve been raised. Normally, they come from direct managers who have reported the case due to policy breaches.

Dealing with minor misconduct can be done through informal counselling, one-to-one meetings, and verbal warnings.

Sometimes, you could issue a warning letter to employees for misconduct. This is a proven method for keeping track of issues should they rise again.

Dealing with gross misconduct

Employers can legally issue a dismissal due to misconduct which involves gross misconduct.

You need to have a gross misconduct procedure in place and deal with cases immediately, investigating all facts and allegations.

Once an allegation has been reported, notify the employee, and start a preliminary investigation meeting.

During the investigation, you may need to suspend the employee if needed. But you must comply with legal rulings beforehand and make them aware.

It’s vital to keep maintain confidentiality whilst investigating employee misconduct. This is to important, especially if they’re proven innocent.

Once the investigation is complete, a misconduct hearing is held. Here, evidence and accounts are presented from both sides to ensure a fair trial. Remember, the employee is allowed to bring representation, like another colleague or a trade union official. They would also be entitled to at least 24/48 hours notice of the hearing.

A final decision is passed and declared straightaway or through a formal letter. The letter will specify whether they are innocent or guilty of gross misconduct. And whether they will face dismissal – without notice and PILON.

The employee should also be given advicse on the appeal process, whether they agree with the final decision or not.

What happens if misconduct happens outside the workplace?

As an employer, you have a duty to care for the safety and wellbeing of your staff.

If misconduct occurs outside of the workplace, you must deal with it as if it happened inside your business. And it also doesn’t matter if the offender is an outsider or another colleague.

Have a disciplinary policy in place for dealing with misconduct outside of the workplace.

Whether the action is minor or major, follow through with your procedures and provide support to the victims of the case.

Get expert help on dealing with professional misconduct with Peninsula

If you need to manage cases of minor or gross misconduct, you must ensure you stick to the correct legal disciplinary procedures.

Taking the wrong action can result in unfair and unlawful treatment, meaning your business could be taken to judicial hearings - leading in expensive legal fees and brand-name repute.

If you need help dealing with professional misconduct, call Peninsula.

We offer expert employment advice on all matters of workplace disciplinary and processes.

Peninsula clients get access to HR experts who can ensure your dismissal procedures follow the law.

And if you’re not yet a client, you can still enjoy a free advice call from one of our employment law experts. Simply call us on 01855 5050


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