Handling misconduct allegations is key to maintaining peace, order and productivity in the workplace. As an employee facing misconduct allegations, while you might want to vehemently defend yourself, it may be best to take things calmly. As an employer on the other hand, you have a responsibility to be objective in handling misconduct allegations. Investigating allegations and ensuring fairness are all part of what makes you a good employer. In fact, it’s a legal requirement to objectively investigate misconduct allegations. When an employee is fired on an unfounded allegation of misconduct, the employer risks being dragged into a costly lawsuit.
This article will provide a comprehensive guide on handling misconduct allegations, covering:
The legal procedures employers must follow when handling misconduct allegations in the workplace
Employee and employer rights
The investigation process
Best practices for ensuring fairness and compliance
What Is Misconduct?
No matter how friendly a workplace may seem, it is governed by rules and standards of conduct. Misconduct occurs when an employee acts in a way that goes against these established rules. Company policies often clearly outline certain acts of misconduct, such as theft, sexual harassment, or racial discrimination. However, some types of misconduct, like chronic lateness, may be implied and not explicitly listed in company policies. Misconduct can range from minor to severe, but any action that violates company conduct rules or the terms of an employment contract is considered misconduct.
According to section 98(2)(b) of the Employment Rights Act 1996, an employee can be dismissed based on conduct. This means that if an employee engages in misconduct, especially if these actions are repeated, it can serve as a legitimate ground for dismissal. However, it’s important to note that dismissal for conduct is not automatic. Employers must still follow a fair process, which often includes conducting an investigation, allowing the employee to respond, and ensuring the decision is reasonable.
Employer Obligations in Misconduct Allegations
In most cases, allegations of misconduct are brought forward by other employees rather than being directly detected by the employer. When such allegations arise, the employer must act as an impartial judge and handle the matter fairly. Simply receiving a complaint is not enough to justify dismissal. According to section 98A of the Employment Rights Act 1996, an employer must ensure procedural fairness in handling matters that may result in dismissal, including misconduct allegations.
Here are the obligations for employers in handling misconduct allegations:
Fair Investigation
One of the criteria for procedural fairness is diligently investigating misconduct allegations. It’s not enough to simply receive a report; the employer has to verify the claims. A fair and thorough investigation might include discussing with the affected parties, observing and documenting repeat offences, and interviewing neutral parties and possible witnesses. It could also include giving the suspected employee a chance to defend themselves.
Disciplinary Procedures
A disciplinary procedure outlines how a company addresses instances of misconduct, and while many companies have their own procedures, it’s important to consider the ACAS (Advisory, Conciliation and Arbitration Service) guidelines for best practices. The ACAS Code of Practice on Disciplinary and Grievance Procedures recommends the following:
Seek an alternative informal resolution. This could be a simple matter of calling both parties and resolving things quietly. Listen to both parties and try to create a win-win resolution. This applies to minor misconduct.
Write a warning notice: Where informal resolution fails, write a warning to the errant party with the intent to investigate. The notice must include the misconduct allegation and potential consequences.
Carry out an investigation.
Create an in-house hearing: After your investigations and you discover probable cause, it’s time to summon the employee. The purpose of an in-house hearing is to simulate a court hearing and allow the employee to defend themselves. This hearing is usually preceded by a notice that includes the evidence of misconduct and the hearing's date, time, and venue.
Assess the employee’s defences and give fair judgement: Judgement must be based on the weight of the defences compared to the evidence of alleged misconduct. Judgement may not necessarily be a dismissal, especially for minor misconduct. It could either be a warning or some other sanction.
Notify the employee about your judgement and give room for appeal. Consider keeping things discreet.
Employee Representation
If you arrange an in-house disciplinary hearing, ensure the employee is informed of their right to representation and accompaniment. his means they can be legally represented or accompanied by a companion of their choice, such as a workplace colleague or a trade union representative. The purpose of allowing representation is to ensure that the process feels fair and free from any undue pressure or duress, which helps maintain the validity of the hearing.
Notice of Allegation
When handling misconduct allegations, it’s important to serve the proper notices to the employee in question. Notices of your intent to investigate, conduct a hearing, and make a judgment must be duly forwarded to the employee. Notices must include relevant details such as allegations, evidence obtained, and instructions for the employee to follow, like showing up for a hearing.
Employee Rights During Misconduct Investigations
When conducting misconduct investigations, employees have the following rights:
Right to Fair Treatment: The Employment Rights Act 1996 emphasises that employees must be treated fairly during any misconduct investigation. This right to fair treatment includes a gentle and non-prejudicial approach, ensuring the employee is informed about the specific allegations and any evidence collected and allowing them to respond. These measures help maintain transparency and ensure employees can defend themselves appropriately throughout the disciplinary process.
Right to Appeal: After a disciplinary hearing on misconduct, an employee can appeal the decision if they believe it was unfair or if they have new evidence to present. This right to appeal includes requesting a re-conduct of the hearing or a review of the disciplinary decision. Allowing an appeal ensures that the process remains balanced and transparent, allowing for any overlooked facts to be considered and demonstrating that the disciplinary procedure was conducted fairly.
Suspension and Pay: Most disciplinary actions are either warnings, suspension, or dismissal. While warnings are “harmless,” dismissal is an outright termination of employment. Suspension, on the other hand, bars an employee from working or being physically present in the workplace for a specified period. When an employee is suspended, they’re entitled to pay for the duration of the suspension until a final verdict is reached.
However, if the employment contract has a clause for suspension without pay, the employee may be legally restrained from receiving pay. The standard legal practice however is that employees must receive pay during suspension.
Challenges and Risks for Employers
Employers need to be careful in handling misconduct allegations in the workplace. Failure to uphold fairness could result in some costly scenarios. Some of the risks include:
Unfair Dismissal Claims: Legally, an employee can file a lawsuit against an employer for unfair dismissal if proper disciplinary procedures were not followed or if the dismissal was disproportionate to the alleged misconduct. For example, dismissing an employee for a one-time instance of lateness, which is considered minor misconduct, could be deemed unfair and excessive.
Reputational Damage: Besides the costly implications of unfair dismissal, employers are at risk of losing their reputation. Reputational damage from a poorly handled misconduct investigation could result in losing business clients, in-house talents, and even being blacklisted on the hiring market. As such, misconduct allegations need to be carefully handled as the employer is at more risk if the matter escalates.
Workplace Morale: Poor handling of misconduct allegations, especially in terms of discretion affects workplace morale. When a misconduct allegation is handled poorly or left unattended, it might portray the employer negatively toward the employees. As such, there’s a likelihood of growing dissent and unproductivity within the workforce.
Best Practices for Handling Misconduct Allegations
Employers have a lot to lose when a misconduct allegation is poorly handled. As such, it’s best to deal with misconduct allegations as quickly as they come. Here are some of the best practices for handling misconduct allegations:
Documented Policies
Consider creating a company policy on misconduct. It must clearly state the investigation and disciplinary procedure. You can either add these policies to all employment letters or give the necessary orientation when onboarding new talents. If you’re uncertain about how to create a policy, you can reach out to an expert on labour law for advice.
Early Intervention
Misconduct allegations are better handled as soon as they occur. Minor misconduct must be promptly addressed with a warning. Ensure that you promptly reach out to the parties and begin the investigation before the matter escalates.
Training for Managers
As an employer, you may not be available to personally look into all allegations of misconduct. Therefore, training managers and HR staff to handle misconduct allegations is wise. You could reach out to an expert on labour law to book a training session for your HR and management staff. This way, you’d be better equipped to tackle issues decisively.
Legal and Regulatory Considerations
As an employer, it’s important to stay updated with employment laws and also ensure that you’re law abiding. The Employment Rights Act 1996, ACAS Code of Practice, Employment Relations Act 1999, and a host of others, provide guidelines for handling misconduct. Ensure that your company policy on misconduct aligns with the law to avoid creating a costly loophole for errant employees.
To further strengthen your disciplinary procedure, record keeping is a must. A detailed record of your investigation and disciplinary procedure protects you against claims of unfair dismissal. Always document your procedure, including the evidence obtained.
In moments of uncertainty, you can get expert advice from legal professionals who specialise in handling misconduct cases. Besides knowing the law, they can help with managing your investigation and disciplinary procedure in compliance with the law.
FAQs
What constitutes misconduct in the workplace?
Any act that is contrary to the company’s policy or office practices constitutes misconduct. It could be a minor misconduct such as lateness or a gross misconduct such as sexual harassment.
How should employers investigate misconduct allegations?
To investigate misconduct allegations, employers may summon the errant employee, interview witnesses and other neutral third parties, and also observe for repeat misconduct.
What are the rights of employees during a disciplinary process?
Employees reserve the right to be notified of an allegation. They also reserve the right to fairness and being legally represented during a disciplinary process. They may also appeal a disciplinary decision.
Can an employee appeal a disciplinary decision?
Yes, an employee can appeal a disciplinary decision with reason.
What are the legal consequences of mishandling misconduct cases?
Mishandling misconduct cases could result in a costly lawsuit against the employer, and possible loss of reputation.
Conclusion
Misconduct allegations are best resolved discreetly and promptly. Irrespective of the gravity of the misconduct, employers must remain professional and fair in handling the matter. Rather than act on mere allegations, it’s safer to investigate and document your findings. Promote fairness and transparency by allowing errant employees to defend themselves against allegations.
The UK employment laws are strict about fair treatment and dismissal procedures, and failing to comply can have serious consequences. Protect yourself and your business by getting expert guidance. At Lawhive, our skilled solicitors are ready to help you navigate workplace disciplinary procedures with legal precision. Don’t risk being on the wrong side of the law. Book a free legal assessment today.