Managing employee misconduct

January 18, 2016

Managing disruptive or unruly employees should be done quickly and effectively to avoid potential disruption to your business and other employees. This means having documents and procedures in place, dealing with issues as they arise and following a proper procedure to avoid successful employment tribunal claims.

The most important thing is to not leave misconduct until dismissal is on the horizon; you should put policies and contracts from the start.

Contract and policies: All employees who are employed for more than a month must be given a statement setting out certain key information about their employment. This includes information about their employer’s disciplinary rules and procedures. The procedure should follow the Acas code of practice on disciplinary and grievance procedures and set out the standards of conduct that you expect of all employees.

Probationary period: The key employment information that you have to provide to your employees can be set out in an employment contract, which should also contain terms to protect your business. In particular, include a probationary period, which can be extended if there are issues with the employee at the end of the probationary period, and a reduced notice period during the probationary period. This allows you to dismiss more easily if things aren’t working out.

Deal with issues as they arise: Conduct issues should be dealt with quickly referring the employee to your standards of conduct, and how they are not meeting them. While the conversation may be uncomfortable, the quicker it is dealt with, the more likely it is that the issue can be handled informally. Do not ignore the issue in the hope that things will improve without your intervention.

Review performance honestly and fairly: Manage an employee’s performance including their conduct throughout their employment with regular reviews. Even if misconduct issues are not dealt with as they arise, raise them in any appraisal or annual assessment. This should not be a tick box exercise, overlooking the underlying problem. It is particularly difficult to defend a tribunal claim when an employee has a good appraisal or has been awarded a bonus for a period during which an employer claims that there were conduct issues.

Be consistent: Do not single out, or be seen to single out, any employee as this can lead to a discrimination claim. Treat all employees in the same way unless you can justify the difference in treatment. Even if an employee doesn’t have sufficient service to bring an unfair dismissal claim (normally two years), consider following some form of procedure. This may avoid a discrimination claim that an employee was treated differently on the basis of a protected characteristic such as sex, race, religion, age, disability or sexual orientation.

Follow your procedure: Having put a disciplinary procedure in place, make sure that you follow it whether you are issuing a warning or dismissing an employee. This should include an investigation, providing the employee with details of the alleged misconduct and a meeting to hear the employee’s side of things, as well as an appeal from any sanction. This will help ensure that the procedure is fair and avoid a successful unfair dismissal claim.

Keep records: Make notes of conversations, warnings and any plan put in place to deal with an employee’s conduct. Written evidence is invaluable in defending any potential claim.

Louise Paull – LawBite Employment LawBrief. For further legal advice you can contact Louise via our online legal advice portal.