How confident are you that you and your managers would be able to spot the signs of misconduct? And would you know what type of misconduct you were dealing with to then identify the correct steps to address it? You might think it would be fairly obvious. But actually, it can be more complicated in practice and getting it wrong could create significant risks.
Gross misconduct is obvious… isn’t it?
If the behaviour is severe, you’d expect it to be fairly straightforward to identify as gross misconduct. Physical violence or threats feel clear cut. As does theft. These are commonly listed in disciplinary policies as forms of gross misconduct. But take theft for example. What exactly does that cover? Taking a pen that was paid for by your business is a form of theft. But would dismissal as a result of gross misconduct be reasonable in such an instance?
What about other kinds of misconduct?
And if gross misconduct isn’t always clear, where does that leave you when it comes to other forms of misconduct? How do you know when an employee’s behaviour crosses the line? At what point do you recognise you’re actually dealing with formal misconduct?
It’s not always easy to differentiate between a conduct issue and what was simply just a mistake. A useful distinction is that misconduct typically relates to a deliberate act or negligent behaviours. The most minor level of misconduct is usually where the act wouldn’t have been hugely significant if it was a one-off. But because it persists, it becomes a concern. So for example, an employee who’s started calling in sick for short periods.
If the behaviour increases in frequency and/or duration, it could be viewed as more serious misconduct. As could behaviours where someone chooses to disregard what’s required of them by your business. Examples include disruptive behaviours such as failing to attend meetings, or minor breaches of policies in relation to the use of IT or AI. While instant dismissal is unlikely to be appropriate, formal warnings may be needed to address the situation and to stop it deteriorating further.
Sometimes differentiating between misconduct and poor performance can be difficult. Keep in mind that misconduct tends to relate more to the intent of the employee. Whereas performance is more about someone not reaching the standards they need to but not deliberately. That would need to be addressed as a capability issue instead.
Actions to take
So what do you need to be aware of to make sure you’re able to manage all forms of misconduct in your business? Here are some questions to consider:
Are expectations about behaviour clear?
Employment contracts and policies and procedures are vital for good management of potential misconduct situations. They set out what’s expected in terms of behaviours and provide an important reference point if there was an issue.
You need to balance clarity with the fact that you cannot cover every possible scenario within them. A list of potential gross misconduct offences can be helpful. But take care with how it’s presented in your policy. You might instinctively feel a certain act was gross misconduct, but when you check your disciplinary policy, realise it isn’t mentioned. That’s less of an issue if the list is presented as examples. But if your policy implies it’s exhaustive, that could put you in a difficult position when it comes to dealing with the situation.
And beware – even when expected behaviours are clearly articulated, if an employee is doing something they think is acceptable as it’s common practice, that could severely limit any action you can reasonably decide to take. If there’s generally a relaxed approach towards timekeeping for instance, you will be in a far weaker position if you wanted to address persistent lateness concerns with a specific employee.
What would a tribunal’s perspective be?
Your response to a potential misconduct issue must be proportionate. If you ended up in a tribunal, they will be scrutinising how reasonably you have acted. Did you make the rules clear? Was the procedure followed with all steps documented? Was the employee given the opportunity to state their case as part of a thorough investigation?
Be meticulous when it comes to recording the evidence. Remember that if you ultimately conclude you’re dealing with a case of gross misconduct, you’re saying that the employee’s acts were so serious they’ve destroyed your mutual relationship of trust and confidence. You will need to make sure your evidence for this belief is extremely robust. Always keep the principle of reasonable responses in mind. Even if you follow procedure, and genuinely believe the employee is in the wrong, a tribunal decision could still go against you if it was felt that your conclusions over the correct course of action weren’t reasonable.
Would managers know how to spot and interpret the signs?
Workplace misconduct isn’t always obvious but needs addressing as early as possible. Someone going off sick regularly is easy to spot. It can be more difficult identifying an issue where an employee is harassing someone else and the victim doesn’t dare speak up. Managers need to cultivate trusted relationships, so team members feel able to go to them to raise concerns. And managers need to stay alert to behaviour changes like an employee becoming withdrawn or uncomfortable around another colleague. Ensure managers know the difference between potential misconduct and a performance problem too.
Would an objective perspective help you?
An independent impartial perspective can be very valuable for dealing with employee misconduct, and other potential disciplinary issues. If you would like to know more about how you could benefit from working with us, then please don’t hesitate to get in touch.
