What counts a misconduct?

There are some quite obvious examples of gross misconduct such as theft, violence or fraud but other situations can be more difficult to call and it can be tricky to determine whether an act qualifies as gross misconduct.

Sometimes it might seem obvious at first glance, but when you delve deeper it might not be as it appears. This is why fair and thorough investigation and disciplinary processes are so important. If you’re an employer dismissing for conduct, you must be able to show that you held a genuine belief as to the employee’s misconduct.

Let’s use an example…

A party organiser finds one of their employees eating the cake destined for a party taking place that day, it’s too late to organise another cake, and the party is ruined. The client complains, refuses to pay and the reputation of the company’s party organising skills is destroyed. The act of the employee could be classed as theft (for example) and constitute grounds for gross misconduct.

However, on further investigation the employer discovers that their employee is diabetic and was about to go into hypoglycaemic shock – the cake was the only thing to hand to prevent this from happening. The cake eating is no longer an act which could justify dismissal.

Running a fair dismissal process

Run an investigation

This should be thorough and involve speaking to all the relevant individuals, reviewing any documents or other evidence such as CCTV footage.

A written invitation to a hearing

If there is a case to answer after your thorough investigation, then you should invite your employee to a hearing. This should be a written invitation and they should be provided with a copy of all the evidence you’re relying on in advance, so that they may consider it before the hearing.

Disciplinary hearing

Your employee should be given the right to be accompanied to the hearing. It should be carried out by someone other than the person who conducted the investigation and it’s helpful to have someone else present to take notes. The hearing is an opportunity to discuss the allegations and evidence, listen to the employee’s side of the story and consider any mitigation and evidence of remorse (where applicable) they may put forward. No decisions should be made at the hearing.

Further investigation

Following the hearing, if you need to, you should carry out further investigations but if none are required, you can make a decision. However, you should take time to consider the evidence and representations made by the employee before you reach the decision.

A written decision

Once you’ve reached your decision: put the employee out of their misery. If you decide a warning is all that’s needed, you should indicate how long it will remain on their record for future disciplinary purposes.

If the decision is a dismissal, you should make it very clear when it takes effect and what payments (if any) they will receive. You need to give a sufficient explanation and clearly explain the reason(s) for dismissal.

Right of appeal

A fair process must include the right of appeal. The appeal should be heard by someone uninvolved in the process and preferably more senior than the person who made the original decision. It’s therefore important to have a plan in place from the start of who in your business should handle each stage of the process so that there’s always someone suitable in reserve for the appeal, if there is one.

Compensation

If unfortunately you find yourself at the receiving end of an unfair dismissal claim by an employment tribunal, the only comfort you have is that there is a cap on compensation. This could be up to £87,519*.

In conduct cases in particular, even if an employee is found to be unfairly dismissed, compensation can be reduced by up to 100% because of contributory conduct i.e. if your employee’s conduct contributed to their dismissal, even if it was found to be unfair, they take some of the blame which is reflected in the compensation award.

*Correct as of April 2020, these change every April.