Dealing with Employee Misconduct: Legal Considerations for Employers

Dealing with employee misconduct is never an easy process for an employer, however, it is essential that employment laws are understood, and the correct procedures are followed. UK employment contracts will usually include clauses about misconduct or disciplinary procedures and employers should ensure that these are followed in every case of alleged employee misconduct. It is important to seek advice from an UK employment advocate specialist if you are unsure about any aspects of the law. 


Employee Rights UK 

Regardless of what an employee has done or not done; they will have employee rights that you must uphold as their employer. These include the right to a fair disciplinary procedure. As their employer, you are responsible for ensuring a thorough investigation is carried out into the allegation(s) of misconduct. This investigation should be impartial and allow the employee a reasonable opportunity to respond. An employee also has the right to appeal following the conclusion of the disciplinary procedure. If they are unhappy with the outcome of the procedure, or any aspect of the process that was followed, or not followed, they will have the right to appeal and as their employer, you will need to have a clear and fair appeals procedure in place.  


Should you Follow Non-Legally Binding Advice? 

The ACAS Code of Practice on Disciplinary and Grievance Procedures is not legally binding, however, it sets out good practice guidelines for employers. The guidance states that the following steps should be adhered to: 

  1. Investigate the matter thoroughly.  
  1. Inform the employee of the allegations. 
  1. Hold a disciplinary hearing.  
  1. Make a decision.  
  1. Communicate the decision to the employee.  


If these guidelines are not followed, there cannot be any legal repercussions, however, the employer is likely to lose if the case is taken to an employment tribunal as it is expected that the ACAS guidelines are following unless there is a good reason not to. A UK employee rights lawyer will insist on ensuring these procedures are followed.  


Understanding Misconduct and Gross Misconduct 

As an employer, you should have a sound understanding of what constitutes ordinary misconduct and what constitutes gross misconduct. Any misunderstanding about the distinction between the two could lead to an incorrect outcome following an investigation. This could allow an employee to successfully appeal against the outcome of the disciplinary procedure or to be given a lesser consequence than they should.  


Misconduct is the least serious and includes relatively minor activities such as: 

  • Being late for work 
  • Missing work without good reason 
  • Breaches of company policy 
  • Misuse of company property 
  • Poor performance 


All the matters mentioned as being least serious misconduct can become gross misconduct where they become extreme, for example, poor performance at work puts the employer’s economic performance in jeopardy or at risk on something like health and safety could well be gross misconduct.

Gross misconduct is more serious and can result in dismissal. This can include: 

  • Theft and/or fraud 
  • Assault 
  • Breach of confidentiality 
  • Serious negligence 
  • Gross insubordination 

Consistent poor performance where there have been warnings can lead to dismissal on capability grounds, and also that under the Employment Rights Act 1996, it is lawful for an employer to dismiss for “some other substantial reason” and this does not have to be gross misconduct.


Employment Law Specialist in London and Southeast England 

For any advice or representation, I am an employment lawyer in London and Southeast England. Don’t leave it too late to get advice in cases of employee misconduct as the process you follow needs to be appropriate. Get in touch to find out how I can help.