Dealing with employee misconduct can be a difficult part of managing a team, but it’s essential for protecting your organisation and maintaining a healthy working environment. If mishandled, misconduct can lead to internal disruption, legal claims, financial loss, and reputational damage.
Here, we set out a clear and practical process for handling misconduct in a legally compliant and fair way.
1. Follow internal policies and the ACAS code
Use your organisation’s disciplinary procedures and follow the ACAS Code of Practice. Keep clear written records, and ensure managers are trained to apply the process fairly and consistently.
2. Be mindful of the Equality Act 2010
Take particular care if the alleged misconduct may relate to a protected characteristic under the Equality Act 2010. This does not prevent disciplinary action, but it does require a sensitive and proportionate approach.
Keep clear records, consider individual circumstances, gather relevant information, and assess whether support or adjustments are needed. Careful handling helps reduce the risk of discrimination claims.
3. Consider suspension
Suspension should only be used where necessary to protect the investigation or workplace safety. It must be a neutral act, usually on full pay unless the contract states otherwise. Confirm the suspension in writing and keep it under regular review to ensure it is not prolonged unnecessarily.
4. Investigate promptly and fairly
A fair investigation is essential. Gather evidence, speak to witnesses, and interview the employee. The investigation should be objective, proportionate, and timely.
5. Assess context and proportionality
Consider the seriousness, the employee’s conduct and performance history, and any mitigating factors. Minor issues may be resolved informally, but more serious or repeated concerns may justify moving into a formal process.
6. Hold a disciplinary hearing
If formal action is appropriate, invite the employee to a hearing in writing. Set out the allegations clearly, provide evidence, and allow time for preparation. Employees have the right to be accompanied by a colleague or trade union representative. The hearing should be led by someone impartial, and the employee must be given the opportunity to respond.
7. Decide and communicate the outcome
After the hearing, consider all the evidence before reaching a decision. Outcomes may range from no action to warnings or dismissal, depending on the seriousness of the matter and the findings. Ensure the decision is reasonable and proportionate. Always confirm the outcome in writing and confirm the right to appeal.
8. Appeal process
Employees must be given the opportunity to appeal. An impartial and more senior manager should handle this stage where possible. They may uphold, change, or overturn the original decision. The final outcome should then be confirmed in writing.
Final thoughts
A fair, consistent approach to misconduct protects your organisation and reduces the risk of legal claims. Getting the process right from the start also helps maintain trust and confidence among your workforce.
If you would like help managing a misconduct issue or reviewing your procedures, our employment team is here to support you
