What is misconduct?
Essentially, anything that counts as misbehaviour by an employee can be described as misconduct.
There are different types of misconduct that describe the various levels of seriousness:
- general misconduct
- serious misconduct
- gross misconduct
We explore each of them in this guide, together with the actions, communications and options available to you at every stage.
3 things to consider before starting a misconduct process...
1. Is it actually misconduct....?
Unacceptable behaviour can sometimes be an indication that an employee is being harassed, feels they've been unfairly treated or is suffering from an illness that they haven't felt able to tell you about.
So, always keep in mind that there could be a reasonable cause for the employee's behaviour and you should explore this further, in case the employee has a legitimate need for support or flexibility or a different type of action on your part.
For more background on how to deal with employees and sickness, see our guide to handling employee sickness and absence.
2. Is it a performance or capability issue...?
There's a key difference between capability processes (relating to performance stances or competence) and disciplinary ones (targeting bad behaviour).
So make you're being supported by the right process before you kick it off.
Performance is all about the outcome of the employee's work: the question of whether it's satisfactory and/or if the employee is competent to meet the standards required.
But if your concern is more about the employee's behaviour and/or attitude towards the doing of the work, then misconduct sounds like it's the process you need.
Take a look at our step-by-step guide to handling employee poor performance if your concerns are more about an employee's competence or standards of performance.
3. Is the employee still in their probation period?
Employees who are still within their probation period should be considered differently.
You can't simply instantaneously dismiss an employee on probation - except in exceptional circumstances where they've committed gross misconduct.
But you can follow a relatively swift process of performance review and dismissal, if they're not achieving the levels of competence that are reasonably required to meet their job description and you do not have reasonable expectation of this position changing.
Take a look at our guide to probation periods and follow the guidance and template suite of letters there.
If it's definitely a misconduct concern – so you've ruled out probation periods and performance, and you're confident that your concerns relate to inappropriate behaviour by your employee – this guide will steer you through the appropriate next steps.
Remember: this is for employees only!
It's important that you only use and implement your disciplinary policy in relation to employees.
Applying it to someone who is not an employee could lead inadvertently to an employment tribunal concluding that this individual does in fact have employment status, with the enhanced rights attaching to such status.
Take advice on how to handle anyone whose behaviour is a problem but who is not an employee.
How to tackle employee disciplinary issues: a quick overview
It's not always possible to know before you meet your employee how they'll react to you raising disciplinary concerns.
The moment you raise a concern, the employee's immediate focus is likely to be on whether their job is at risk. They may also be very worried about their reputation and what others may say, if they learn of the process.
They may become defensive, hostile, tearful or they might even agree with you. You'll need to be prepared for any of these reactions.
One thing that is really important to the smooth running of this process is that the concerns are raised with the employee as early as possible, once the conduct comes to your attention and you have taken reasonable steps to verify that it is a genuine concern, (rather than something that might, e.g. have been maliciously or frivolously raised by someone else with their own agenda).
If you're not sure about the best approach for tackling particular conduct by an employee, get a quick view from an expert.
Our Speak to an Adviser service is designed to help with these kinds of questions.
The disciplinary policy: your starting resource for misconduct by employees
Underlying any step you take in any misconduct matter should be your disciplinary policy.
This sets out your disciplinary procedure in full and it’s important both for you and the employee that you follow this to the letter. Every business with employees (however many) should have one.
All employees should be able to access an up-to-date copy of the policy. It must be written and presented clearly.
The terms of the employment contract with your employee will also be relevant.
Is the disciplinary policy part of the employment contract?
This will depend on the wording of the employment contract that you've agreed with your employee.
Our expert partner, Wilkes, recommends that you do not make the exact wording of the policy part of your contract terms.
They do recommend, however, that you include a clause in the employment contract that requires the employee to comply with all your policies, and which gives you the right to update, in your discretion, from time to time.
Other policy documents you may need:
You'll find our staff handbook containing all of these policy templates on Farillio, if you're missing any of them.
The different types of employee misconduct
Misconduct in all its guises...
Now let's look at the different sorts of misconduct and how best to deal with them.
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