10 Faux pas when dealing with misconduct issues in the workplace

Employers often have to deal with situations where an employee has committed acts of, or is facing allegations of, misconduct in the workplace and there is the potential for a lot to go wrong. It is important that the employer gets the process right when dealing with issues of misconduct as the consequence of failing to do so can be damaging to the employer and could lead to them facing unfair dismissal claims, reputational damage and high settlement costs.

In this latest podcast, our employment law experts discuss the 10 common pitfalls made by employers when dealing with misconduct in the workplace and how best to avoid them.

1. Automatically suspending the accused individual

Suspending the employee should not be the knee jerk response and, before suspending an employee, an employer should first check the employee’s employment contract to check that they have a contractual right to suspend.

The employer should then consider what they are trying to achieve with the suspension and whether there is a less excessive way to achieve their aim. Employers should also consider the impact of suspension on the employee and keep it under regular review.

2. Allegations are vague and unclear

It is important that allegations are clear so that the employee can understand the case against them and can properly address and answer the allegations made against them. Employers should be clear from the start as to what the allegations are and consider any new issues that come to light as part of the investigations, address these new issues with the employee and give them a chance to respond.

3. Failure to follow disciplinary procedure

It is important that employers look at their disciplinary procedure and policies when dealing with misconduct issues as failure to follow such procedures and policies could render a dismissal unfair. Employers should ensure that HR and those chairing the hearings are familiar with their policies/procedures.

In considering unfair dismissal cases, employment tribunals will look at any procedural flaws and consider whether they are significant enough to amount to unfairness.

4. Failure to follow the Acas Code of Practice on Disciplinary and Grievance Procedures (Acas Code)

Employment tribunals must take into account the Acas Code when deciding whether an employer has acted reasonably in relation to the procedure it has followed, and if there were any warnings prior to the employee being dismissed.

Failure to follow the Code can result in an increase in the compensation award of up to 25%.  It is therefore helpful for employers to refresh themselves on the Acas Code before embarking on a disciplinary process.

5. Breaching confidentiality

The disciplinary process can be quite sensitive and personal to the employee, so it is essential that confidentiality is maintained throughout the disciplinary process.

Employers should ensure that information about the matter is shared on a need-to-know basis only and remind those involved in the process, of the importance of keeping matters confidential. Meetings relating to the process should be conducted in private settings and any supporting documents should be stored securely.

6. Failure to document the disciplinary process

Employers need to document what they have done to show that they’ve carried out as much investigation as reasonably possible in the circumstances and that led to the conclusion that the employee was guilty. Employers should ensure that they have an effective paper trial.

Employers should document a summary of the steps that are going to be taken, details of the people being interviewed, minutes of the meeting and any statements (where appropriate).

The outcome letter should be carefully drafted and set out:

• The allegations against employee.
• Any findings of facts made in the course of investigation.
• The reasoning behind the decision.
• Policies relied on.
• The Sanction.
• Any mitigation considered.
• Effect of live warnings.
• The employee’s right to appeal.

7. Unreasonable delays with employee receiving the outcome

It is important to ensure that investigations, while conducted thoroughly, are also conducted without any undue delays. Lengthy investigations and processes can result in recollections fading and impact an employee’s wellbeing, as well as leading to claims and complaints.

Employers can help to avoid delays by forward planning and making sure the right people are in place with the appropriate expertise to deal with investigations and hearings.

Employees should be kept regularly updated and informed of any potential delays and the reasons for such delays.

8. Inconsistent disciplinary sanctions

When deciding what sanction to apply, employers should look at what sanctions have been applied historically for similar cases to ensure consistency and should avoid jumping to conclusions.

Employers should consider mitigating factors such as the employee’s history, seniority and remorse shown. The employer should also consider the impact of dismissal on the individual.

9. Failure to consider alternatives to dismissal

Often employers will automatically proceed to dismissal if there is a finding of gross misconduct. It is unreasonable to assume that a finding of gross misconduct will mean that summary dismissal will be within the range of reasonable responses.

Employers should consider mitigating factors that might make dismissal unreasonable and take into accounts factors such as length of service and past disciplinary records.

10. Failure to deal with grievance raised during disciplinary proceedings

Often an employee can raise a grievance during disciplinary proceedings and it is important that the grievance is properly dealt with. Employers should consider whether it is more appropriate to pause the disciplinary process while they deal with the grievance or to deal with both processes at the same time.

Employers should keep employees updated with what they are doing and the reasons why, and also state the reasons for the approach they have decided to take.

For more information about any of the issues covered in this update, or if you are an employer and need advise in relation to dealing with misconduct in the workplace, please get in touch with one of our employment law solicitors today.