What is misconduct at work?

Misconduct is when an employee's inappropriate behaviour or action breaks workplace rules. Some misconduct examples include bullying, harassment, refusing to do work (insubordination), or being absent without permission (absent without leave or ‘AWOL’).

Some acts count as ‘gross misconduct’ because they’re very serious or have very serious effects. Examples of gross misconduct in the workplace provided by the Advisory, Conciliation and Arbitration Service (ACAS) include:

• fraud
• physical violence
• serious lack of care to duties or other people (gross negligence)
• serious insubordination

What’s seen as gross misconduct can depend on the business, so it’s advisable to set this out in your own employment contract or policy with examples.

How do I start a disciplinary procedure?

Before starting a disciplinary procedure, you should first see whether the problem can be resolved in an informal way. This can often be the quickest and easiest solution. You could try solving the issue with your employee by privately talking with them and any other staff member involved and listening to their points of view.

It’s advisable to still carry out an investigation and the full disciplinary procedure where there has been gross misconduct. You might then decide on dismissal without notice or payment in lieu of notice.

What happens in a disciplinary procedure?

If you’re intending to take disciplinary action against an employee you should follow the procedures set out in the ACAS Code of Practice on Disciplinary and Grievance Procedures.

These are, however, only a minimum standard and it’s advisable to have your own disciplinary procedure, clearly setting out the process that will be followed and the sanctions that could be imposed.

Employees have the right to be accompanied by a colleague or a trade union representative at both the initial disciplinary hearing to discuss the allegations and any appeal meeting. That right doesn’t apply to any investigative or fact-finding meeting.

Employees are not entitled to take anyone other than a fellow worker or trade union official unless you permit it or their contract gives them the right. If their chosen person isn’t available for the meeting they have the right to have the meeting postponed for up to five working days. Preventing an employee from being accompanied would be in breach of the law.

What are the main steps I should follow as an employer?

The ACAS Code sets out the main steps which you should follow when considering or progressing disciplinary action. You must:

• investigate to establish the facts of each case
• inform the employee of the problem in writing
• hold a meeting with the employee to discuss the problem
• allow the employee to be accompanied at the meeting
• decide on appropriate action after carefully considering the position
• inform the employee of the outcome in writing
• provide the employee with an opportunity to appeal

The ACAS Code advises that where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with any grievance. This may be appropriate and so should be considered on a case by case basis. Generally, however it is acceptable to run both processes in parallel.

If a disciplinary case reaches an employment tribunal, judges will take into consideration whether an employer has followed the ACAS Code in a fair way. The tribunal has the power to increase any compensation awarded to a claimant by up to 25% if an employer has unreasonably failed to follow the ACAS Code, for example, by failing to offer the right of appeal.

Before the hearing

You should let the employee know in writing the details of the complaint against them; the disciplinary procedure to be followed; and that they must attend a disciplinary hearing. Details of the date and time of the meeting should be provided to the employee as soon as possible.

You should also tell the employee that they’ve the statutory right to be accompanied at the hearing. If the employee has any special requirements, for example if English isn’t their first language or they’ve a disability that will make their participation in the hearing difficult, they may request relevant assistance and this should be provided to them so far as the request is reasonable.

At the hearing

• The hearing should be a two-way process with an opportunity for both parties to discuss the concerns rasied.
• You should introduce those present and explain the purpose of the hearing to the employee along with how it will be conducted.
• You should outline briefly the case against the employee and go through the evidence gathered.
• You should give the employee the opportunity to state their case and answer any allegations that have been made against them. The employee should be able to ask questions, present evidence and call witnesses. The person accompanying them should also be allowed to ask questions and should be given the opportunity to confer privately with them. However, the person accompanying the employee isn't entitled to answer questions on the employee's behalf, unless you agree otherwise.
• The employee should be given the chance to provide an explanation for the alleged disciplinary offence. They should also be asked if there are any special circumstances that they want you to take into account.

After the hearing

It’s good practice to adjourn the disciplinary hearing before any decision is taken. You may choose to take no further action or may impose a disciplinary penalty. The kind of penalty that you could impose will depend on what’s contained in the employee’s contract of employment. But as a general guide, the options can include:

• A verbal warning
• A written warning
• A final written warning
• A disciplinary transfer
• A disciplinary suspension without pay
• Demotion
• Loss of seniority
• Dismissal with notice
• Dismissal without notice.

Once the decision has been made you should inform the employee in writing.

Appeal

You should offer the employee the opportunity to appeal against the outcome of the disciplinary hearing, in accordance with the ACAS Code. It’s standard practice to give the employee five working days to appeal. It’s best practice that the appeal is dealt with by a manager who’s not had previous involvement in the employee’s case As with the disciplinary hearing, the employee is entitled to be accompanied at any appeal meeting by a colleague or trade union representative.

You should write with a decision on the employee’s appeal as soon as possible.

How can I guard my business against claims?

If an employee feels that their disciplinary procedure has not been dealt with fairly or that they’ve been discriminated against, they may choose to bring claims in the employment tribunal including for unfair dismissal, constructive dismissal or discrimination depending on the facts of their case.

The best way to protect your business from such claims is to stringently follow your policies (and as a minimum, the ACAS Code) and to ensure a fair, transparent, and timely process is carried out at all times. It is advisable to seek legal advice at the early stage of the process to discuss what is required of you during the process in order to protect your position.

If you need to legal advice please contact us online here or call 0330 041 5869 to speak to a member of our team.