Discipline and grievance: Line manager briefing on employee misconduct (briefing)

Overview

This line manager briefing covers the topic of employee conduct and aims to provide guidance on the effective management of employees whose conduct at work is unsatisfactory. Another briefing Line manager briefing on capability deals with the effective management of employees who are underperforming.

This briefing includes information on:

1. Importance of acting promptly
2. Meaning of misconduct
- distinction between misconduct and lack of capability
- gross misconduct
- summary dismissal
3. Disciplinary rules and procedures
- disciplinary rules
- disciplinary procedures
4. Informal approach to tackling misconduct
5. Formal procedures
- right to be accompanied
6. Keeping records
7. Communication skills for a disciplinary interview
8. Warnings
- records of warnings
- shelf life of warnings
9. Dismissal on grounds of misconduct
- statutory dismissal and disciplinary procedure
10. Test yourself

1. Importance of acting promptly

Line managers should always act promptly to deal with any misconduct on the part of their employees. A failure to communicate to an employee that something that he or she has done is unacceptable may lead the employee to assume that his or her conduct is satisfactory. This will make it much more difficult for the manager to deal effectively with the problem behaviour, which may get worse, at a later time.

2. Meaning of misconduct

It is up to each organisation to define what type of conduct it regards as misconduct, and to communicate this clearly to all employees. This should be done both when employees start work and at intervals throughout their employment, for example through company policies and management briefings.

Similarly, an employer should make it clear in its policies and rules what types of behaviour will be regarded as 'gross misconduct', entitling the employer to dismiss without notice.

There is no legal definition of misconduct, and no legal list of the types of behaviour that may be regarded as misconduct. Much will depend on the type of business operated by the employer and a range of circumstances such as the kind of work performed, safety issues, the importance of reliable attendance and timekeeping, and the risks that the employer would face in the event of misuse of company equipment such as computers.

Distinction between misconduct and lack of capability

Misconduct is any type of behaviour or conduct at work that falls below the standard required by the employer or is in breach of any company policy or rule. It is the agreed standard, policy or rule that is relevant, rather than a manager's subjective opinion.

Lack of capability, on the other hand, exists where, no matter how hard an employee tries, he or she is simply unable to perform the job to the standard required by the employer. If, however, an employee fails to come up to the required standard as a result of his or her own carelessness, negligence or lack of effort, this could be regarded as misconduct because such behaviour is within the employee's control.

It can sometimes be difficult to establish whether poor performance is due to inherent incapability or to lack of effort, laziness or negligence. In some cases, there may be an element of both. A manager should, however, give employees the benefit of the doubt initially and not automatically jump to conclusions that anything that goes wrong is a result of employee misconduct.

Gross misconduct

Gross misconduct is misconduct of such a serious nature that it fundamentally breaches the contractual relationship between the employee and the organisation. In the event that an employee commits an act of gross misconduct, the employer will be entitled to dismiss the employee summarily.

Examples of gross misconduct could include:

• fighting or physical violence;
• theft, fraud or falsification of documents;
• wilful or malicious damage to company property;
• failure or refusal to obey a reasonable instruction without good reason;
• transmitting confidential information outside the organisation;
• serious breach of health and safety rules;
• maliciously raising a grievance or making an allegation;
• serious misuse of computer, e-mail or internet facilities.

These are, however, only examples. It will be up to each organisation to devise its own list based on its specific circumstances and needs.

Summary dismissal

Summary dismissal means dismissal without notice or pay in lieu of notice, and irrespective of whether any previous warnings have been given to the employee. In other words, once the decision to dismiss has been made, the dismissal takes effect immediately and all the employee's rights and benefits under the contract cease at the end of the day on which he or she is notified of the dismissal.

It is, however, important for line managers to remember that, no matter how serious an employee's misconduct has been, dismissal can never be automatically fair. This is because the outcome of any unfair dismissal claim will depend not only on the employer having a solid reason for the dismissal, but also on whether it has properly followed its own procedures and acted reasonably in dismissing the employee.

In particular, managers should note that an on-the-spot dismissal will be unfair even where it is clear that an employee has committed a serious act of misconduct. It will always be necessary to follow the required procedures before taking a decision to dismiss. The very least that an employer must do in cases of misconduct is to investigate fully and fairly, and listen to the employee's explanation before deciding on what penalty to impose.

3. Disciplinary rules and procedures

All employers, irrespective of size or industry sector, are required to include within the written statement of terms and conditions of employment that must be given to all employees a note specifying any disciplinary rules applicable to them, or referring them to a document specifying such rules. The written statement must be provided within two months of the start of employment.

It is also obligatory to devise and implement a disciplinary procedure, which must incorporate the key steps required by the statutory dismissal and disciplinary procedure (see below), and include this with the written statement. Alternatively, the employer may refer the employee to a separate document that contains the disciplinary procedure.

Disciplinary rules

Disciplinary rules are useful because they set standards and make it clear to employees what conduct is and is not acceptable.

Rules may cover a range of issues such as:

• health and safety;
• timekeeping;
• bullying and harassment;
• personal use of office equipment, materials and stationery;
• obeying reasonable instructions;
• claiming expenses;
• care in handling company property;
• removal of company property from the premises; and
• use of e-mail and the internet.

Disciplinary procedures

Disciplinary procedures permit managers to deal fairly and consistently with employees who breach the rules.

Although there is no legally required structure for a disciplinary procedure, most employers operate a procedure with three or four stages prior to dismissal, for example:

Stage 1: Informal warning

Stage 2: Formal verbal warning

Stage 3: Written warning

Stage 4: Final written warning

Stage 5: Dismissal

The above hierarchy is an example and not a legal requirement. It is also possible to institute a procedure in which only two formal warnings precede dismissal.

Before any warning is issued, the employee concerned should be given a chance to state his or her case at a properly convened disciplinary interview. The manager should fully consider any explanations or mitigating factors put forward by the employee prior to deciding whether it is appropriate to issue a warning and, if so, what level warning is appropriate in the circumstances.

There is no obligation in law always to start at the beginning of the procedure. What is important is that the type of warning issued (ie the penalty) should match the seriousness of the employee's offence.

For example, if an employee with no previous warnings committed a breach of safety rules that was relatively serious (but not serious enough to justify dismissal), the manager might decide to issue a final written warning.

It is important that managers act fairly and objectively when deciding what type of warning to impose and take care not to overreact or take a decision in the heat of the moment.

In one case the court held that a final written warning issued to an employee with five years' unblemished service for a relatively minor first offence represented a breach of trust and confidence. The employee had taken an extra hour off work at lunchtime following a heated argument with a colleague that had upset her. The court said that the penalty of a final written warning in these circumstances was disproportionate and unjustified. The employee, who had subsequently resigned, succeeded in her tribunal claim against the employer.

4. Informal approach to tackling misconduct

As a first step in tackling unsatisfactory behaviour or in the event of a minor breach of the employer's rules, the manager should hold an informal meeting with the employee to make him or her aware of how and why the behaviour in question is causing a problem.

The joint aim of the meeting will be to ensure that the employee understands why his or her conduct is unacceptable and to seek agreement on making sure that the behaviour does not continue or recur.

Despite the fact that the discussion is informal, the manager should set a date to review the employee's progress and keep a record of the meeting. The record should show the date and time of the meeting, state briefly what was discussedand record the fact that there was no formal outcome.

5. Formal procedures

If one or perhaps two informal warnings have not produced an improvement in the employee's conduct, there will be little point in continuing with informal action. The manager will need to move up a gear to formal action.

The first step in any formal procedure will be for the manager to investigate the employee's conduct when an incident occurs. Investigation may include checking with the HR department to establish whether the employee has previously received any formal warnings and whether these are still in date, talking to other managers who may have knowledge of the employee's alleged misconduct, or interviewing possible witnesses to the alleged misconduct.

It is permissible to suspend the employee with pay for a short time while the investigation takes place. The employee should, however, be informed that the suspension is not a disciplinary sanction and does not involve any prejudgment.

The next step will be for the manager to set up a disciplinary interview, giving the employee reasonable notice and informing him or her of the right to be accompanied at the interview. The manager should give adequate details of the alleged conduct that is unsatisfactory or unacceptable without giving the impression that the employee has been judged guilty.

At the interview itself, it will be important for the employee to be given a full and fair hearing. The employee should have a full opportunity to put forward his or her version of events and any mitigating factors or explanation.

At the end of the interview, the manager should summarise what has been discussed and then adjourn before reaching any conclusion about what, if any, formal disciplinary action to take.

The outcome - for example a written warning - should subsequently be communicated to the employee, first verbally and then in writing.

All disciplinary hearings should be held in private and it is important for the manager to remember that the employee has the right to be treated with courtesy and respect, irrespective of what he or she is alleged to have done.

Right to be accompanied

Workers are entitled in law to be accompanied, if they wish, at any formal disciplinary interview by either a fellow worker or a trade union official of their choice.

If a worker's chosen companion is not available at the proposed time of the interview, the worker may request a reasonable alternative time for the interview within five working days and the employer must postpone the hearing as requested. Such a postponement is, however, required only once.

The worker has the right to determine, within limits, the role that he or she wishes the companion to play at the hearing. If the worker wishes, the companion must be allowed to:

• address the hearing on behalf of the worker, ie put his or her case;
• confer with the worker during the hearing;
• sum up the worker's case;
• respond on the worker's behalf to any views expressed at the hearing.

The manager is, however, entitled to expect the worker, and not the companion, to answer any questions asked.

In some cases, the worker may wish to bring the companion along simply for moral support rather than for representation.

6. Keeping records

Full records should always be kept of all interviews held with employees about their conduct, whether they are formal or informal, as well as the meeting outcomes, for example any warnings given.

Such records should be held confidentially, preferably by the organisation's HR department.

The records will be necessary in case further misconduct occurs or the employee fails to change his or her behaviour despite the measures taken. They will allow the manager to follow through the further stages of the disciplinary procedure at a later date if necessary.

7. Communication skills for a disciplinary interview

Conducting a meeting with an employee to discuss unsatisfactory conduct is never an easy task and it is understandable that a manager may have doubts and worries over such a meeting. Open, honest and unambiguous communication will be essential if such a meeting is to succeed.

In terms of communication skills, the manager should:

• state factually what the employee has done or not done and avoid expressing personal opinions about it;
• give the employee specific examples, for example 'yesterday at the meeting you swore at Angela';
• avoiding vague statements and generalisations such as 'you have a bad attitude' or 'you never meet your deadlines';
• ask open questions;
• listen actively to what the employee has to say and take it on board;
• ensure that his or her tone of voice is firm but not accusatory;
• avoid emotional reactions;
• try to establish whether there is any underlying reason for the employee's misconduct;
• seek the employee's agreement that whatever he or she has done or not done is unacceptable and why this is the case;
• ask the employee whether he or she is willing to undertake to improve and/or to ensure that there is no repeat of the misconduct;
• check for understanding, for example by asking the employee to state or summarise his or her understanding of what has been discussed and agreed.

The manager should ask whether the employee believes that he or she has been given a full opportunity to explain the conduct in question and that the disciplinary interview has been conducted fairly. If the answer to either of these questions is 'no', the manager should ask the employee to state why he or she thinks that this is the case, and take immediate steps before the meeting closes to put things right. If the answer to the questions is 'yes', this should be recorded.

8. Warnings

A formal warning should:

• explain the nature of the employee's misconduct;
• take into account any explanations or mitigating factors put forward by the employee;
• state the improvement required, ie give a clear indication what the employee is expected to do, or not do, in the future;
• state what will happen if the misconduct is repeated, ie the next stage of the disciplinary procedure;
• provide for a period of time during which the warning will remain 'live' for disciplinary purposes;
• state that the employee may appeal against the warning and how and to whom he or she should appeal;
• be recorded.

Records of warnings

All warnings, including verbal warnings, should be recorded.

It may sound illogical to refer to a warning as a 'verbal warning' if it is in fact put in writing. However, it is essential that records are kept, otherwise the employer will find it very difficult to defend any subsequent claim of unfair dismissal at an employment tribunal. This is because there is a requirement for the employer to act reasonably in an overall sense when dismissing an employee, and lack of evidence that the employee has been given fair warnings will be likely to lead the tribunal to conclude that the employer did not act reasonably.

One way of getting round the confusion that might otherwise be caused by referring to warnings as 'verbal' or 'written' would be to use different terminology, for example: stage 1 warning, stage 2 warning and stage 3 warning.

Shelf life of warnings

A warning will usually remain active for disciplinary purposes for a defined period of time. There are no set time periods laid down in law, but if the employer's procedure stipulates time periods the manager should always adhere to them.

Typically, a verbal warning will remain live on an employee's file for six months, a written warning for 12 months and a final written warning for 18 or 24 months. If further misconduct occurs while a warning is still active, the manager will be able to move up to the next level of warning.

After the time period has expired, the warning should either lapse or be reviewed by the manager. However, whether it should be removed from the employee's file or remain there but not be relied upon is a matter for the employer to determine as part of its formal disciplinary procedure.

9. Dismissal on grounds of misconduct

If, following a series of formal warnings, the employee's misconduct continues or is repeated, the manager may be able to proceed to dismiss the employee fairly.

It is usual for two or three warnings under the organisation's formal procedure to be given before dismissal is contemplated. Dismissal should not be undertaken lightly and should normally be a last resort after all other possible courses of action have been explored.

Dismissal for misconduct will be unfair if the manager has not first given the employee warnings making it clear that continued or repeated misconduct will lead to dismissal. As discussed above, the exception to this principle is where the employee has committed an act of gross misconduct, which may justify summary dismissal.

Misconduct is a potentially fair reason for dismissal in law. For a dismissal to be fair, however, the employer also has to show that the employee's conduct was sufficiently bad to justify dismissal and that it acted reasonably in dismissing the employee for this reason.

Certain statutory procedures must also be followed, otherwise the dismissal will be automatically unfair.

Although there are some exceptions, in order to be eligible to bring a complaint of unfair dismissal before an employment tribunal, an employee is usually required to have a minimum of one year's continuous service as at the date of termination of his or her employment.

Statutory dismissal and disciplinary procedure

In October 2004, a new statutory dismissal and disciplinary procedure was introduced into employment law. It requires employers to take certain procedural steps when dismissing an employee, or when instituting certain types of disciplinary action. Amongst other things, the procedure applies to dismissals on the grounds of misconduct.

It is important that any disciplinary procedure adopted by the employer incorporates the provisions of the statutory procedure, which are, in effect, a minimum standard.

As well as being applied as part of the process of dismissal, the procedure must be used where the employer takes 'relevant disciplinary action'. Relevant disciplinary action could include:

• demotion or loss of seniority where this is authorised as part of the employee's contract or the disciplinary procedure;
• a decision not to promote an employee on the grounds that he or she has received a disciplinary warning.

Strictly speaking, there is no requirement to apply the statutory procedure prior to giving a formal verbal or written warning, but it may nevertheless be beneficial to get into the habit of adopting the key steps of the procedure in these circumstances. Following the set procedures consistently is a useful exercise for managers to encourage them to think through the issues and what evidence, if any, is available against the employee.

There are three compulsory steps in the statutory dismissal and disciplinary procedure.

Step one: The manager must write to the employee setting out the conduct that may give rise to the termination of his or her employment. This letter must give adequate information to the employee about why the manager is dissatisfied with the employee's conduct without giving the impression that the manager has made up his or her mind already about what the outcome will be. The letter should also invite the employee to attend a meeting (which is step two).

Step two: The manager must hold a meeting with the employee at which the employee must be permitted to make representations about his or her conduct and ongoing employment. After the meeting the manager must inform the employee of the decision and of his or her right of appeal.

Step three: If the employee wishes to appeal, he or she should be invited to attend an appeal hearing, after which he or she should be informed of the final decision.

It is important to note that any failure by the manager to adhere to the statutory dismissal and disciplinary procedure will make the dismissal automatically unfair, irrespective of the reason for non-compliance. In such circumstances, any compensation for unfair dismissal stands to be uplifted by between 10 and 50% by the tribunal.

It is important for managers to understand that the statutory dismissal and disciplinary procedure represents a minimum standard only. Adherence to it will not, on its own, be enough to ensure that a dismissal is fair. An employment tribunal will also examine whether the employee's conduct was sufficient in all the circumstances to justify dismissal and whether the employer treated the employee reasonably in a general sense.

10. Test yourself

1. Which of the following might amount to lack of capability rather than misconduct?

(a) Theft of the company's customer database by a junior employee.

(b) Using company equipment to view internet pornography.

(c) Fighting at the company Christmas party.

(d) Failing to meet sales targets.

2. John was caught in the act of vandalising company property. The company disciplinary rules state that vandalism of company property will constitute gross misconduct, which may result in summary dismissal. Which of the following statements is correct?

(a) Because the company rules clearly state that vandalism constitutes gross misconduct, which may result in summary dismissal, John's manager is free to dismiss him on the spot.

(b) Because John has never previously damaged company property his manager will not be able to summarily dismiss him for gross misconduct.

(c) John's manager should follow the company's disciplinary procedure before she makes any decision to dismiss him summarily for gross misconduct.

(d) As the company's disciplinary rules state that vandalism will constitute gross misconduct, this will make John's summary dismissal automatically fair.

3. Although his prior work record was unblemished, Daniel's recent irresponsible behaviour has cost the company an important deal. In similar circumstances several years ago, another employee was given a final written warning. Which of the following statements is correct?

(a) His manager should give him an informal warning - it is, after all, his first offence.

(b) As Daniel's manager is furious about his behaviour, summary dismissal will be the only appropriate sanction.

(c) A final written warning will be the only fair sanction.

(d) It seems likely that a final written warning will be appropriate, but Daniel's manager should fully consider any explanation or mitigating factors that he puts forward.

4. Which of the following statements about warnings is accurate?

(a) Records should be kept of all warnings issued, except verbal warnings.

(b) The law states that, after six months, an employer is no longer able to treat a verbal warning as 'live'.

(c) The law states that an employer's disciplinary procedure must contain four different warning stages.

(d) Once a warning has elapsed it should not be taken into account in any future disciplinary proceedings against the employee.

5. Which of the following statements about the statutory dismissal and disciplinary procedure, introduced in October 2004, is accurate?

(a) Line managers may choose whether to follow the statutory dismissal and disciplinary procedure or their own company procedure.

(b) A company's dismissal and disciplinary procedure should incorporate the minimum provisions of the statutory procedure.

(c) Where a line manager has adhered to the statutory dismissal and disciplinary procedure in dismissing an employee, the dismissal will always be fair.

(d) Line managers are obliged by law to follow the statutory dismissal and disciplinary procedure when contemplating any disciplinary action.

The answers can be found at the bottom of the document.

The author: Lynda Macdonald has worked freelance as a trainer and consultant since 1987, specialising since 1995 in employment law. Prior to this she worked in HR management for over 10 years. Lynda has an LLM in employment law and practice and now concentrates on designing tailored training courses for managers on employment law related topics.

Test yourself answers: 1. (d) 2. (c) 3. (d) 4. (d) 5. (b)