In the second webinar of this series on unfair dismissal, Barrister Helen Gardiner gives us a whistle stop tour of Misconduct and what an employer really should know. If you would like to view the full webinar, please email marketing@shorebird-rpo.com and we will happily email the recording immediately, or why not join our LinkedIn Webinar Network to access all our archives http://linkd.in/1acZPdh

1. Misconduct (2 of 4)
By: Helen Gardiner
On: 21st January @ 13:00
FREE
WEBINAR
Starting
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4. Please note that the contents of this webinar do not constitute legal
advice.
MISCONDUCT
by
Helen Gardiner
hgardiner@st-Philips.com

5. Employment Rights Act 1996 (“ERA”)
Dismissal unfair unless:
• the employer can show that the reason (or the principal
reason) for the dismissal was a potentially fair reason.
Misconduct is a potentially fair reason for dismissal; and
• the tribunal finds that, in all the circumstances (including
the employer’s size and administrative resources) the
employer acted reasonably in treating that reason as a
sufficient reason for dismissal. That means that the
dismissal must be both procedurally and substantively fair.
Misconduct

6. Acas Code of Practice on Disciplinary
and Grievance Procedures
Misconduct
Applies to dismissals for misconduct.
Must be taken into account by tribunals.
ESSENTIAL READING!
Download at:
http://www.acas.org.uk/media/pdf/k/b/Acas_Code_of_Practice_1_
on_disciplinary_and_grievance_procedures-accessible-version-
Jul-2012.pdf

7. What is
misconduct?
• Fact sensitive.
• Look at employer’s disciplinary
rules.
• Non-exhaustive list of examples.
Misconduct

8. Gross
misconduct
 Most serious types of
misconduct.
 Warrants instant dismissal.
 Deliberate wrongdoing
OR
 Gross negligence.
 Look at the context.
Misconduct

9. Particular types of misconduct
Misconduct
 Refusal to obey instructions.
 Swearing.
 Fighting
 Misuse of computers.
 Dishonesty.

10. Conduct outside work
Does it affect the employee when he is doing his work?
No rule for dismissal because of criminal charge/conviction.
ACAS guidance on disciplining an employee who is subject
to a criminal investigation, charge or prosecution.
Misconduct

11. Social Media
• Staff using social media outside of work hours.
• Do not take a disproportionate view of the damage or
potential damage to reputation.
• Consider employee guidance on corporate image and
reputation, and expectations regarding use of social media.
Misconduct

12. Misconduct following previous warnings
In the absence of gross misconduct, dismissal for a first offence is
likely to be unfair.
• Consider only live warnings.
• ACAS – staged process/
• No magic in a written warning.
• Date for assessing whether a final warning is live is the date of
the conduct leading to the dismissal, not the date of the
dismissal.
• Exercise caution if there is a final warning which is being
appealed.
Misconduct

13. The ‘fairness’ test
Section 98(4) ERA:
The determination of the question of
whether the dismissal is fair or unfair
(having regard to the reason shown by
the employer) –
(a) Depends on whether in the
circumstances (including the size
and administrative resources of the
employer’s undertaking) the
employer acted reasonably or
unreasonably in treating it as a
sufficient reason for dismissing the
employee, and
(b) Shall be determined in accordance
with equity and the substantial merits
of the case.
Misconduct

14. Fair procedure
Basic principles:
• Employee should know
they are at risk of
dismissal and why.
• They should be allowed
to make representations.
• They should be given a
right of appeal.
Acas Code:
• Investigate issues.
• Inform employee of
issues in writing.
• Conduct a disciplinary
hearing or meeting with
the employee.
• Inform the employee of
decision in writing.
• Give employee right of
appeal.
Misconduct

15. Investigation
• Consider how rigorous to be.
• Be even-handed.
• Follow up aspects of evidence.
Misconduct

16. Misconduct by one of a group
May dismiss a group of suspected offenders where the
perpetrator cannot be identified.
Not an “all or none” approach.
Misconduct

17. Employee must know the case against them
• The employee must be sufficiently informed to be able to
put their side of the story.
• Consider disclosing witness statements.
• Allow employee to call witnesses.
• Allow employee to be accompanied.
• Keep good notes!
Misconduct

18. Substantive
fairness
• Was the decision to dismiss
within the range of reasonable
responses that a reasonable
employer in those
circumstances and in that
business might have adopted?
• Tribunal must not substitute its
view for that of the employer.
• Test applies to investigation and
the decision to dismiss.
Misconduct

19. Relevant factors
• Background, e.g. previous warnings
• Length of service
• Has the employer admitted the offence?
• Shown remorse?
• Provocation/stress.
Consider mitigating factors.
Misconduct

20. Be consistent
Look at how other employees have been treated in similar
circumstances.
Be prepared to justify any differences in treatment.
Misconduct

21. Procedure for claiming
1. Employee must contact Acas to see if the complaint can
be settled through Acas early conciliation.
2. If not settled, must issue a claim within 3 months minus
one day of dismissal (though limitation extended by
conciliation process).
3. At tribunal, if successful the employee may claim
reinstatement, reengagement or compensation.
Misconduct

22. Contact me:
Helen Gardiner
hgardiner@st-philips.com
Tel: 0113 244 6691
www.st-philips.com

23. Shared Parental Leave
By: Caroline Acton
On: 27th January @ 13:00
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