Misconduct

Overview

The ACAS Code of Practice on Disciplinary and Grievance Procedures sets out the procedure that employers should undertake when employees are to be disciplined or dismissed for misconduct, and case law provides plenty of examples of what is and what is not reasonable.

There are essentially two types of misconduct dismissal:

  • Dismissal after receiving warnings for misconduct, and
  • Summary dismissal for gross misconduct.

Where an employee commits an initial act of misconduct the employers should not use dismissal as the sanction unless the act amounts to gross misconduct.  Employers should include examples of gross misconduct within their disciplinary procedures.

Investigatory Meetings

Employers are required to carry out an investigation to establish the facts before carrying out a disciplinary process and dismissal (see above).

Notification

If, after carrying out the investigation, there appears to be misconduct, the employee should be notified of this in writing and invited to a disciplinary hearing. The invitation should, at least:

  • Set out the alleged misconduct;
  • Explain the possible consequences;
  • Give the date, time and place of the disciplinary meeting; and
  • Remind the employee that he has the right to be accompanied at the meeting.

Depending on the circumstances further information may be required.

Disciplinary Hearing

A disciplinary hearing or meeting with the employee must be held without unreasonable delay. Where the hearing could result in disciplinary sanctions employees have a statutory right to be accompanied by a Companion.  The employer may be willing to allow the employee to be accompanied by someone other than a representative or colleague where, for example, the employee is disabled, or other factors suggest it may be appropriate.

If the employee cannot attend the meeting, the employer must normally adjourn the meeting at least once.  The ACAS code does recognise some instances in which it may be appropriate to proceed with the meeting without the employee, but these are rare.

If further investigations need to be carried out as a result of matters raised during the meeting then the employer should adjourn the meeting and carry these out. The level of investigation that is appropriate will depend on the circumstances in question.

After the Meeting

The employer must decide whether disciplinary action is justified. If the misconduct is confirmed the employee will be issued with an appropriate written warning or dismissed.

The ACAS Code recommends administering at least two warnings before dismissing an employee for misconduct unless the misconduct amounts to gross misconduct.  Employees should be given at least one chance to improve before being issued with a final written warning.

The decision to dismiss the employee can only be taken by a manager who has authority to do so. The employee must be notified in writing of the dismissal without any unreasonable delay.

Appeal

The Acas Code requires employers to state the period for which a warning will remain active. The non-statutory Acas guide gives guidance on appropriate periods, and states that warnings would “normally” be live only for a set period (for instance, six months for a first written warning and 12 months for a final written warning) but does not rule out the possibility of an unlimited warning in appropriate cases, particularly where an employee has a history of allowing their conduct to lapse just after the expiry of warnings.