Fair Misconduct Dismissal
How To Achieve A Fair Misconduct Dismissal And Avoid An Unfair Dismissal Claim
The need for disciplinary action will be as a result from the inappropriate conduct or behaviour by one of your employee’s. Dismissal will be an appropriate outcome in a disciplinary situation where the employee fails to correct their conduct or behaviour following previous formal disciplinary warnings or where their conduct or behaviour is so serious it warrants instant dismissal (gross misconduct). Misconduct is one of the five fair reasons for dismissing an employee. Read my tips to achieving a fair misconduct dismissal and avoid an unfair dismissal claim.
What Behaviours Lead to Disciplinary Action?
There is no legal list of what constitutes misconduct or gross misconduct. The range of behaviours will be different in each business and what one business views as gross misconduct another may view with more leniency and take a harder approach to a different set of behaviours. The circumstances to take into account when compiling a list of behaviours for misconduct and gross misconduct for your business will be:
- Type of work performed
- Safety issues
- Importance of reliable attendance and timekeeping
- Risks to the business of misuse of equipment
What Procedure Must You Follow?
If an employee’s conduct does not meet acceptable standards the company’s disciplinary procedure must be followed through each stage to ensure the dismissal is fair.
The procedure should follow the guidelines set out in the ACAS Code of Practice. The Code sets out the steps that should be taken to ensure a fair and reasonable procedure is followed for resolving instances of misconduct in the workplace.
The ACAS code of practice states that:
- Issues should be raised and dealt with promptly by both parties, with no intentional delaying of meetings, agreement to decisions etc.
- Both employers and employees should act consistently throughout the case.
- Employers should undertake necessary investigations to discover and resolve reported grievances.
- In the case of an employee disciplinary, employees should have the nature of the case explained to them and be given a reasonable chance to put their case and response forward.
- Employees should be given the chance to be accompanied to grievance and disciplinary meetings.
- Employees should be allowed to appeal any decision reached by their employer regarding any grievance, disciplinary or dismissal.
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Learn More About Conducting Disciplinary Meetings |
Misconduct Dismissals Often Become Riskier When Employers Act Too Quickly
In smaller businesses, misconduct situations can quickly become emotional, particularly where trust has broken down or the alleged misconduct involves dishonesty, conflict or customer complaints. Employers may feel pressure to remove an employee quickly, but rushed decisions, incomplete investigations or inconsistent treatment can significantly increase the risk of unfair dismissal claims.
Employment Tribunals will often consider not only whether misconduct occurred, but also whether the employer carried out a reasonable investigation, followed a fair process and acted proportionately in the circumstances.
Gross Misconduct
When an employee is dismissed for gross misconduct, the dismissal is usually without notice or payment in lieu of notice. This is often referred to as summary dismissal.
Many SME owners understandably assume that serious misconduct means an employee can simply be dismissed immediately. However, even in cases of potential gross misconduct, employers should still ensure the situation is managed fairly and through a reasonable process.
A gross misconduct situation should still be process-led, specifically:
- Suspension should be considered carefully rather than imposed automatically,
- Investigation: a reasonable investigation should still take place to establish the facts,
- Consistency: employers should ensure similar situations are handled consistently,
- Proportionality: the response should be proportionate to the circumstances and evidence available.
Rushed decisions, poor investigations or inconsistent treatment can significantly increase the risk of unfair dismissal claims, even where serious misconduct may have occurred.
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Learn More About Suspension |
Unfair Dismissal
As we outlined in our article of Fair Reasons for Dismissal where a company fails to follow the procedure the employee can make a claim for Unfair Dismissal. Should either party fail to follow the ACAS Code then compensation awarded could be increased (in the case of employers failing to comply) or decreased (in the case of employees failing to comply) by up to 25%.
Qualifying Service For Claiming Unfair Dismissal
From 1 January 2027 the qualifying service for claiming unfair dismissal will reduce from two years to six months.
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