This purpose of this section is to give employers guidance upon the actions they need to take if an employee's conduct is unsatisfactory and may lead to dismissal.

This section deals separately with the two categories:

• Gross misconduct, where the behaviour is such that a reasonable employer could not continue the contract.  Normally gross misconduct is defined in the disciplinary code examples might be theft from a fellow employee, fighting, introducing a virus into IT systems.  Gross misconduct is dealt with in the final paragraph of this section 1. below.

• Conduct which on its own would not necessarily lead to dismissal.  For example refusal to carry out a reasonable instruction, misuse of company property, unsatisfactory behaviour to other employees.  In this section we call this situation cumulative conduct dismissal.

Cumulative Conduct Dismissal

All employers will recognise this situation.  Over a period of time there have been a number of incidents, not necessarily related, where the employee's behaviour has been unsatisfactory.  Work performance may be acceptable, often warnings result in improvement for a few months but behaviour reverts in time.  The individual's conduct suggests they are not someone the organisation should be employing.  

 

Most of these situations are a matter of degree.  Indeed similar conduct in different organisations may lead to different outcomes.  For example one organisation employing drivers may insist upon a certain standard of dress, persistent failure to comply with that standard might lead to dismissal.  Another organisation employing individuals in exactly the same tasks may have no set-down standards at all.  

 

The law recognises that organisations are different and may set down different codes of conduct.  The critical issue is has the organisation defined the standards of conduct, and has it acted reasonably to enforce those standards in compliance with a set code of practice.

 

Problems arise when employers fail to address conduct issues effectively, when they arise.  Matters then build up to a point the employer believes they need to dismiss the individual, but there is little on no evidence that supports the accumulative effect of previous conduct.

 

Overall Organisation Behaviour

1. Ensure you have a clear disciplinary code and that all employees are aware of its contents.  If possible stick to the ACAS code indexed opposite.

 

2.  In addition to the disciplinary code ensure that the staff handbook clearly sets out the standards of behaviour expected.  Make sure that all employees have a copy of it and have been briefed according to its contents.

 

3. Apply the behaviour standards consistently across all employees.  But make sure that where some exceptional departure are required (e.g. for reasons such as religion, child care, health disability, cultural) the reason is documented and consistent. 

 

4.   Stick to the letter of the disciplinary code and apply it consistently to all employees. 

 

5.  For the first 12 months of employment unfair dismissal protection does not apply*.  Where conduct issues arise during that period our advice is to ensure that they are followed rigorously and if doubts remain, the contract is terminated.

 

6.   *There is protection if the employee alleges dismissal for specific grounds, see ACAS guidance indexed opposite.  The main areas for employers to be cautious about are any question of discrimination on grounds of gender, disability, race or religion. 

 

7. If at all possible deal with conduct matters verbally in an informal manner. 

 

Formal Conduct Dismissal Procedure

It is extremely important that a written record is kept of all the actions detailed below and that employer stick to the procedure in every detail.

 

1.  Thoroughly investigate the employee's behaviour.  Document the issues and formally interview witnesses.

 

2.  Let the employee know in writing what it is alleged they have done wrong and the reasons why it was unacceptable.

 

3.  Hold a meeting to give the employee the opportunity to hear the nature of the complaint(s).  The meeting should be held at a convenient time for both parties.

 

4.  At the meeting the employer should explain the complaint(s) and go through the evidence that has been gathered.  If necessary call witnesses.  The employee should be allowed to challenge the issue if they desire, ask questions and call witnesses.

 

5.  Following the meeting the employer should formally consider the conduct and decide upon the appropriate action.  Normally the first step would be a written warning setting out the nature of the misconduct and the changes in behaviour required.  In addition the employee should be warned that the written warning is part of the formal disciplinary procedure and the consequences of failure to change behaviour.  Give the employee an opportunity to appeal.

 

6.   A written record of the warning should be kept but it should be disregarded for disciplinary purposes after a specified period (eg six months).

 

7.   Where there is a failure to change behaviour in the timescale set out a second formal meeting should again be held with the employee to inform them of this.  The employee must be informed of the nature of that meeting in advance in writing and the possible outcome.

 

8.  The meeting should be held in same form as set out in 4. above.  The outcome of that meeting should be a final written warning.

 

9.  If the employee's conduct still fails to improve a final meeting should be held the outcome of which may be dismissal or a sanction short of dismissal such as demotion, loss of seniority or loss of pay. 

 

10.  If an employee is playing the system by waiting until warnings have expired that would be a valid reason to extend the time period for future warnings.

 

 

Gross Misconduct

This arises when the employee has committed an act which by its serious nature means there is a fundamental break down in the contract of employment.  Most disciplinary codes give examples of such behaviour. 

 

If behaviour occurs which the employer believes may be gross misconduct the employer should be extremely careful to follow the letter of their disciplinary code.  Bear in mind the outcome could be having to convince an Employment Tribunal that procedure was followed and that the outcome was a reasonable one in the circumstances.