Employee Misconduct at Work

09 July 2019

Occasionally, your employees might engage in behaviour that goes against your business procedures.

You can make it clear what you expect from employees by explaining what you consider good behaviour in your employment contracts and staff handbook.

But it’s an unfortunate inevitability that, eventually, an employee may break your rules. if you have a thorough staff handbook, you can avoid this, but you need to be prepared for any cases of misconduct. 

So, what can you do if this happens? Let’s take a look.

What is misconduct?

It’s behaviour that an employer deems inappropriate, or unacceptable. Misconduct in the workplace, or professional misconduct, usually relates to an employee's conduct during working hours.

Depending on the behaviour in question, you might have to discipline or dismiss an employee. 

One way to inform your decisions in the disciplinary procedure is to work out if it was intentional or not. An employee may not always realise they are committing an act of misconduct. 

Wilful misconduct

When considering the question of what does misconduct mean, whilst this can differ from company to company, one thing will remain consistent; wilful actions. 

In short, employees will willingly commit acts they know to go against the company’s policies on behaviour and conduct and open themselves up to the potential consequences. 

It is important to make this distinction, as there may be times when an employee’s actions are not them deliberately breaking the rules but reflect the fact that they may be struggling and need further support. 

It is always important to approach situations, such as an employee’s performance dipping, with care. 

Types of misconduct

There are varying degrees of severity of misconduct from minor misdemeanours through to gross misconduct. For example, frequent lateness or using the company telephone for personal calls is minor. Gross misconduct however is something like stealing, violence or behaviour which jeopardises the safety of fellow employees. 

  • Misconduct: includes something seen as unacceptable 
  • Gross misconduct: can lead to immediate dismissal because it is serious enough and possibly criminal.

Misconduct is when something occurs that weakens an employee-employer relationship. But it’s not enough to warrant dismissal in isolation.

In comparison, there’s gross misconduct. This is where a serious breach of your employment procedures can lead to a summary dismissal, which is where the employee is dismissed without notice.

It is important to understand that what makes up gross misconduct may not always be the same from one organisation to the next, and this will vary depending on the type of organisation and its culture. 

Whilst theft, fraud, or physical violence will nearly always be considered gross misconduct, acts such as foul language or personal use of the work’s computer may be considered gross misconduct for some employers but not for others.

Examples of misconduct

It is, therefore, crucial that a company clearly defines what it believes is the difference between misconduct and gross misconduct. 

Examples of the types of behaviours considered to be misconduct should be included in the handbook - although it should be made clear these are not all-encompassing. You should also make the consequences of behaving in such a manner clear in the handbook.

The list of things that could be classed as minor misconduct is endless; however, as an HR representative it’s important to consider the following examples:

  • Persistent lateness.
  • Not completing work on time.
  • Not following a manager's instruction.
  • Doing a piece of work incorrectly.
  • Not managing your attendance correctly.
  • Not following procedures properly.

Examples of gross misconduct

There is no strict legal definition of gross misconduct. Outline what behaviour you consider is gross misconduct in your contracts or staff handbook. 

Doing both will help you later on if you have to face an unfair dismissal claim.

There are some usual examples of gross misconduct companies' outline. Here are some of them. 

Physical violence and offensive behaviour

  • Fighting and physical assault.
  • Bullying.
  • Harassment.
  • Sexual misconduct.
  • Intimidating behaviour.
  • Acting overly aggressively.

Fraud, theft and dishonesty

  • Stealing petty cash.
  • Taking office supplies for personal use outside of work.
  • Stealing from colleagues.
  • Fraudulently claiming expenses.
  • Making gain from industrial espionage.
  • Falsifying work documents.
  • Using work premises for fraudulent or personal use.

Gross negligence and breaking health and safety rules

  • Not wearing the required safety and protection clothing.
  • Not handling dangerous chemicals with sufficient care.
  • Removing safeguards from equipment.
  • Not safeguarding pregnant employees or those at greater risk in the workplace.

Causing damage to the workplace or items in the workplace

  • Acts of gross negligence that lead to damage, such as stacking crates in an unsafe, unchecked manner.
  • Acts of wilful damage, such as arson.

Gross misconduct related to alcohol and drugs

  • Being incapable of work because of intoxication or being under the influence of drugs.
  • Taking drugs at work.
  • Buying or selling drugs at work.

Query letter for misconduct

When faced with an issue of misconduct, employers will need to determine how they want to proceed. 

An employer may instead choose to distribute a query letter to an employee for misconduct, informing them of the concerns raised and inviting them to explain why they are acting in the way they are. 

Depending on their response, this may be the only action required. However, if you are not satisfied with their response, you can escalate it to formal procedures. 

You should note that you should only consider this for minor issues. More serious accusations of misconduct should give rise to formal procedures, such as the written disciplinary procedure in the handbook. 

Expert support on misconduct in the UK with Peninsula

Dealing with misconduct is tricky, especially if you have a small team. Here at Peninsula, we can help you with every step. This includes representation, to make things a bit less personal. 

Get our expert team to draft policy for you. Peninsula clients get access to our 24/7 HR helpline to consult our specialists on or secure air-tight contracts with our document experts.

And if you’re not yet a client, you can still enjoy a free advice call from one of our business experts. Simply call us on 0800 028 2420

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