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Disciplinary and Misconduct Overview

Misconduct in the Workplace

Employers are entitled to expect and require a certain standard of behaviour and conduct from employees. Good discipline is an essential ingredient for maintaining employment relations and business success.

Where conduct falls below the standards required by the employer it may be necessary to consider disciplinary action. However, disciplinary action can have severe consequences for employees and in serious cases can lead to dismissal, therefore disciplinary rules and procedures are important to ensure fairness and consistency.

Implementing and maintaining clear and well-communicated disciplinary rules and expectations is very important in the workplace. The majority of employees will follow such rules and effectively self-discipline voluntarily.

Conduct or Capability?

It is important for employers to understand the difference between misconduct issues and capability issues, and take appropriate steps accordingly. Misconduct is generally a deliberate act or omission but can also include carelessness, negligence or lack of effort or application. They key point to look for is whether or not the behaviour is within the control of the employee. Misconduct cases are appropriately dealt with under a disciplinary procedure.

Where an employee’s performance is unsatisfactory but this is due to a genuine capability issue (for example they do not have the skill, aptitude, health or other physical or mental qualities to do the job) the disciplinary procedure may not be appropriate. See Sickness Absence and Ill Health Overview [FS3.01] and Dealing with Poor Work Performance [FS2]. This fact sheet is not intended for use in capability cases.

Fair Dismissals

Conduct is a potentially fair reason for dismissal under section 98 of the Employment Rights Act 1996. An employee with at least two years’ continuous service with their employer will be able to claim unfair dismissal in the Employment Tribunal if they have been dismissed unfairly. An employer defending a claim for unfair dismissal will need to be able to show that:

  • The principle reason for the dismissal falls within one of the categories of potentially fair reasons for dismissal (conduct, capability/qualifications, redundancy, breach of statutory duty or restriction, some other substantial reason);
  • The employer acted reasonably in all the circumstances in treating the reason as sufficient to justify dismissal, including the requirement to adopt a fair procedure before taking the decision to dismiss. This is often known as the range of reasonable responses test.

The above illustrates the importance of following a fair disciplinary procedure, an otherwise fair dismissal can be held to be unfair due to procedural errors alone. For further information on what constitutes a fair disciplinary procedure see Managing Disciplinary Issues [FS5.02] and Disciplinary Policy [P5.01].

Where an employee has insufficient service to be able to bring a claim for ordinary unfair dismissal an employer may decide to accelerate a dismissal by following a reduced disciplinary procedure (see Dismissing Short-Serving Employees – Disciplinary [FS5.04]). This is a commercial decision and should be made only after an analysis of the risks and taking legal advice. The fact that an employee has insufficient service to claim ordinary unfair dismissal does not mean that the dismissal is necessarily low risk as other claims without qualifying service requirements (such as automatic unfair dismissal claims, whistleblowing or discrimination) may be possible.

Disciplinary Policies, Procedures and Rules

One of the key ingredients for a fair disciplinary procedure is for the employee to have been aware (or be reasonably expected to be aware) that the alleged misconduct would be treated as a disciplinary issue by the employer. It is good practice to include disciplinary rules and expectations as part of an induction process for any new employees.

Most employers include a non-exhaustive list of misconduct and gross misconduct offences within their disciplinary procedure itself. It is also possible to introduce additional conduct rules by methods such as announcing to all employees that a certain specific act or omission will be treated as misconduct. This can be done in team meetings (although always best to record in writing also), notices on notice boards, e-mail instructions, intranet postings.

Whenever and however a new conduct rule is introduced an employer will need to be able to show that any employee who breached that rule was or should have been aware of that rule when they committed the misconduct offence. Where important new conduct rules are introduced (such as a zero tolerance policy on an issue that previously was not treated as a gross misconduct offence) it is good practice to issue each employee with a written copy and require them to sign to signify their receipt and understanding of the rule.

The ACAS Code

The statutory ACAS Code of Practice on Disciplinary and Grievance Procedures was introduced in April 2009. The Code is supplemented by a non-statutory guide called Discipline and Grievances at Work, The ACAS Guide. Both the Code and the Guide are available from ACAS

The ACAS Code applies to “disciplinary situations” which includes misconduct and poor performance. Whenever an employer is considering dismissing an employee due to misconduct they should consider the ACAS Code as any Tribunal will expect to see that the provisions of the Code are followed when determining whether or not a fair procedure has been applied. Further, if either party unreasonably fails to follow the Code it can affect compensation. Depending on fault the Tribunal may either increase or reduce the employee’s compensation (if any) by up to 25%.

Statutory Right to be Accompanied

All workers have a statutory right to be accompanied to disciplinary hearings (whenever a worker is required or invited to attend a disciplinary hearing by their employer). They can choose to be accompanied by either a fellow worker or trade union representative.

See The Statutory Right to be Accompanied [FS5.03] for further information on this right.

See also the template Guide to the Role of the Companion [TP5.01].

This document has been created by, or on behalf of ESP Ltd, as a general document and as a guide in relation to its subject matter and has not been bespoke drafted for you or the specific circumstances in which you are looking to use it. Prior to using this document and undertaking any HR process you must consult your organisation’s own policies and procedures to ensure that you do not do anything in conflict with your own policies and procedures.  If in any doubt as to how to use this document or, if you require any legal advice, please feel free to contact ESP Ltd on 0333 006 2929 and our legal team will be more than happy to assist.  ESP Ltd will not be liable in any way for any actions undertaken by you or your use of this document unless we have been consulted regarding your use of this document as legal advisor to your business or have bespoke drafted any documentation in response to a specific support request.

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