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Misconduct is a potentially fair reason for dismissal under the Employment Rights Act 1996. The employer has to bale to show that misconduct was the actual reason for dismissal.

The guidance provided by the courts and employment tribunals indicates that if any employer dismisses an employee because of his/her misconduct the employer will need to establish that:-
  • It believed that the employee was guilty of the alleged misconduct, and
  • It had reasonable grounds on which to hold that belief, and
  • At the stage at which it formed that belief it had carried out a reasonable investigation into the alleged misconduct.
If an employee admits to the alleged misconduct it may not be necessary to investigate much further, unless of course there are reasons for believing that the admission is false – such as covering for a colleague. In the vast majority of situations the employer has to carry out a reasonable investigation. There is no absolute rule on what contributes a reasonable investigation; so sometimes it should involve interviewing witnesses, and sometimes it might not.

When considering whether a misconduct related dismissal was a fair dismissal or not an employment tribunal will have to decide if it was reasonable for the employer to treat that reason as a sufficient reason to dismiss in the circumstances. This is commonly expressed by the question whether the decision to dismiss “fell within a range of reasonable responses” to the alleged misconduct. Therefore an employment tribunal may conclude that even if the employer genuinely believed that the employee was guilty of the alleged misconduct that the resulting dismissal fell outside the range of reasonable responses, and was an unfair dismissal.

In general dismissal for a single act of minor misconduct will not be treated by an employment tribunal as being unfair. Rather than dismissing the individual for a minor act of misconduct, the employer should respond by providing some counselling, or a verbal or written warning instead.

Matters such as absenteeism and lateness, although possible acts of misconduct, will not usually merit dismissal on the first occasion. The employer ought to enquire with the employee about the cause or causes of the problem. It is important that the employers appreciate that there may be genuine reasons for the absenteeism or lateness, such as a medical reason (which could bring the employee within the protection against disability discrimination).The root of the problem may be related to the needs of the employee’s dependants or children; in which case the employer should consider if some form of flexible working arrangements may resolve the problems.

Employers cannot rely on a breach of their attendance rules alone to justify a dismissal. The employer must always address the issue in the context of the employee’s circumstances. In dealing with absences employers need to have clear procedures which address how long-term, and short term absences will be handled in a sickness absence policy (link PAYG policy) and/or disciplinary procedure (link PAYG policy). Similarly the single use of abusive language may not justify dismissal, unless it is discriminatory or a threat of violence. In most instances the appropriate reaction and response will depend on the context and circumstances, for example an employer might treat it as a more serious act of misconduct if it is towards or in the presence of a customer or client. However, it may be appropriate in some cases for the employee to make n apology rather than be dismissed. In some instances provocation may have played a role, and so should be taken into account by the employer. Disclosing a trade secret or confidential information may amount to misconduct justifying dismissal.

Breaking a company rule may sometimes amount to misconduct justifying dismissal, but often it will not. It is important that in drawing up any particular company rule the employer should make it clear how a breach of such a rule will be treated. The more important the rule the more serious becomes the misconduct arising from a breach of the rule. Furthermore, any change in the rules must be brought to the attention of the employees.

The general rule is that, except in cases of GROSS misconduct employees should not be dismissed for a first disciplinary act of misconduct. This means that employers need to produce the disciplinary procedures (see PAYG policy) in such a way that gives clear examples of acts of minor misconduct, serious misconduct, and gross misconduct. Some acts of gross misconduct are quite obvious; such as violence against a colleague or customer, and theft from the employer. Other acts of gross misconduct might include matters very specific to the nature and type of work done by a particular employee or in a particular business. Even in most cases of gross misconduct it is still vital that the employer goes through the proper disciplinary procedure (involving an investigation, meeting, and opportunity to appeal) rather than dismiss the employee on the spot. Only the most extreme cases of gross misconduct would justify instant dismissal. E.g. employee caught red-handed stealing from the employer, or caught fighting a colleague or customer. Even in those situations the employer must still write to the employee to confirm the reasons for dismissal, and set out a right of appeal. The Statutory disciplinary procedures were repealed in 2009. However, although there is now no "automatic" unfair dismissal from following a set procedure, an employer must still follow a fair procedure in order to avoid (or defeat) any claim of unfair dismissal.


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