How to handle employee misconduct
Friday, 13 November 2009 12:30
Unfortunately, every now and then employees will find themselves in a situation where they are accused of some kind of wrongdoing at work. Misconduct can cover a huge range of behaviours, from harassment of other employees, to stealing, to non-compliance with regulatory requirements, such as those of the Financial Services Authority. Some can even over-lap with criminal conduct.
The important thing to remember is that if the case gets to Tribunal, the Employment Judges will not be looking into whether or not the employee was actually guilty of the misconduct. The tests which they must apply are as follows:-
1. At the time of this dismissal, did the employer believe that the employee had been guilty of the misconduct?
2. Were there reasonable grounds for the belief?
3. Did the employer carry out as much investigation into the matter as was reasonable in all circumstances of the case before dismissing the employee?
Therefore, if an employer can show that they have investigated the situation properly, have spoken to all witnesses (if any) to the misconduct, and come to a reasonable view that the employee is guilty on the balance of probabilities, then they are likely to succeed in showing that the dismissal was fair.
These cases can be very difficult for employees, as if all investigation has been reasonable and in line with procedures, employees have to satisfy the very high test that NO reasonable employer would have dismissed in the same circumstances.
The Tribunal are not allowed to substitute their own judgement for that of the employer. Therefore, even if they think that dismissal was harsh and they themselves might have come to a different conclusion, they can still deem the dismissal as being fair and ‘within the range of reasonable responses open to a reasonable employer’.
Therefore this can put the employee into a very difficult situation. For example, consider the night porter who is the only person on duty when some money goes missing and he insists he is not responsible for it. Investigation would no doubt be on the basis of checking any CCTV cameras to see if others did enter the premises during the night, e.g. cleaners, etc, when the money was last seen, by whom, and where, and interviewing the night porter as to his duties that night. It is easy to see that on the balance of probabilities, it would be reasonable for the employers to believe that the night porter was guilty of the misconduct, and that the decision to dismiss was reasonable.
It is therefore very important that if an employee is accused of something, it is best to seek advice as soon as possible. As much investigation into the circumstances ought to be carried out by the employee as well as the employer, in order to seek to clear their name. In addition, if there is an issue with any possible criminal conduct, employees ought to be aware that any information they give during investigatory or disciplinary meetings can be disclosed in the Courts for use in any criminal proceedings. Legal advice, both for employers and employees. is essential in these circumstances and should be sought as soon as the issue comes to light.
We have extensive experience of acting for both employers and employees in Employment Tribunals in misconduct cases and would be happy to advise and assist you.
If you require more advice on any of the above please contact Jill Watson on 0207 464 8433 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it