Managing employee conduct

It is essential that your employees understand the expectations to maintain certain standards of behaviour, both in and out of the office. Here Croner, trusted HR experts, explore how you can manage employee conduct.

Conduct is a potentially fair reason for dismissing an employee. That said, employees with two years or more of continuous service gain the right not to be unfairly dismissed by their employer. Therefore, a clear disciplinary procedure must be followed before any final decision is made. The Acas Code of Practice on Disciplinary and Grievance Procedures¹, a statutory code, provides guidance to employers on how to handle a disciplinary procedure in the workplace.

Forms of misconduct

Levels of misconduct start at unsatisfactory or minor misconduct. This includes the following:

• poor performance of a task
• poor timekeeping
• poor standards of dress.

Usually, situations like these can be dealt with informally. Have a discussion with the employee to tell them their behaviour is not acceptable. Reinforce that you will deal with them more seriously if it continues. That said, you can choose to begin the formal disciplinary process here if you feel it’s necessary.

If an employee continues to commit an act of minor misconduct, it can become a more serious form of misconduct. This is serious or major misconduct. This doesn’t have to be multiple instances of misconduct – it can also be more specific isolated issues. These include:

• failure to carry out reasonable management instructions
• neglect of duty.

Serious misconduct usually results in the start of a formal disciplinary procedure.

Lastly, gross misconduct. This misconduct is so serious it damages the trust and confidence of the employment relationship. What amounts to gross misconduct differs in some companies. So, be sure to outline what it means in your organisation. Generally, gross misconduct includes:

• Theft
• Unlawful discriminatory behaviour
• Incapacity at work due to the use of intoxicants or drugs
• Providing confidential company information to competitors or unauthorised bodies.

Gross misconduct can result in a dismissal for a first offence. However, a proper disciplinary procedure should still be followed.

Disciplinary procedure

If an allegation of employee misconduct is made, you must conduct a thorough, fair and impartial investigation. You must do this to promptly establish if there is a case to answer before considering further disciplinary action.

A thorough investigation will involve gathering all relevant evidence. You must also conduct fact-finding interviews with witnesses and the employee. Once completed, decide if the complaint can be resolved informally. If not, you should proceed with your disciplinary procedure. Employees have a statutory right to be accompanied to a disciplinary meeting. They can be a fellow worker, trade union representative or an official employed by a trade union.

At the meeting, you should explain the disciplinary allegations in full. Once that is done go through the evidence with the employee and allow them to respond to each point. The employee should be given sufficient time to set out their case, ask questions and present evidence in their favour. They should also be presented with the opportunity to provide any mitigating factors that they feel could help their case. Disciplinary procedures should include the right of appeal.

HR considerations

Take steps to ensure all employees are aware of the expectations placed upon them while they work for the company. This can be specified in the contract of employment. You can also include this within the employee handbook and discuss it as part of an induction process.

It should be made clear how seriously forms of misconduct will be taken by the company and what the consequences will be. To give some examples, companies may wish to specify what actions will be taken in response to certain actions, such as:

• Claims of bullying
• Abuse of company internet
• Failure to adhere to its data protection requirements.

Managing conduct out of the workplace

Dealing with conduct is part and parcel of managing a workforce. Whether you own a small practice or a large one, conduct issues will more than likely arise. This means you need to ensure you know how to deal with these issues.

This is particularly where unforeseen circumstances arise that may disrupt usual business practices. During the coronavirus pandemic, it is more important than ever that employers become accustomed to dealing with these conduct issues. You need to be able to manage staff while they are working from home and when they are in the office.

Managing conduct during the pandemic

Where remote working is concerned, employees who are working from home should be treated the same as those who are in the office. This includes matters of conduct. The way conduct is handled with a remote worker will be similar to how it is handled with employees in the office. However, it can be difficult to police misconduct among remote workers. This makes figuring out how to deal with these issues equally as challenging.

The easiest way to manage misconduct in this situation will be to put extra methods in place to make sure there is no misconduct. For example, hold regular catch-up sessions with remote employees and encourage self-appraisals.

Levels of misconduct, either reported or observed, start at unsatisfactory or minor misconduct. This can include poor performance of a task or poor timekeeping. Not all instances of misconduct should be managed with a heavy hand. Keep in mind that not all employees can successfully work from home without it impacting their mental health. It is crucial, therefore, that employers first talk to employees suspected of misconduct. You should use this opportunity to gather information about why their behaviour may have changed. It may be that they require emotional support. You can provide this through an employee assistance programme or adjustment to their work schedule.

At times, there can be cases of gross misconduct. This is an action that is so serious it serves to damage the trust and confidence of the employment relationship. Gross misconduct can result in a dismissal for a first offence. A proper disciplinary procedure should be followed in all cases.

Gross misconduct while a person is working from home can consist of a few things. Harassment via a messaging platform, such as Teams, may fall into this category. Putting a client’s personal information at risk by not following company data protection rules may also be gross misconduct.

When employees are working in the office, it may be easier for conduct issues or behavioural changes to be detected. Misconduct, and gross misconduct, in the office can sometimes take the same form as that demonstrated by employees at home. However, homeworking brings up types of misconduct that office working would not. For example, an employee might not work because they are busy watching television.

How to manage conduct

The following action steps can help employers manage conduct issues both remotely and in the office:

1. Act quickly to establish the facts
2. Carry out a thorough investigation
3. Follow a fair disciplinary or grievance procedure
4. Seek advice for legal clarity
5. Decide on the appropriate consequence to the employee’s actions.

Dismissal

Conduct is a potentially fair reason for dismissing an employee. However, employees with two years or more of continuous service have the right not to be unfairly dismissed by their employer. This is why a clear disciplinary procedure must be followed before any final decision is made to dismiss an employee for misconduct.


For further advice on conduct, or wider business matters, you have access to advice through your Practice Xtra membership by calling 01455 639 125.

1Acas Code of Practice on disciplinary and grievance procedures