Misconduct is a potentially fair reason for dismissal
The dismissal of an employee for a reason which “relates to the conduct of the employee” is potentially fair, Employment Rights Act 1996 (ERA 1996). Many employers have workplace disciplinary rules which identify unacceptable conduct, the degree of severity with which it is regarded and how acts of misconduct in the workplace will be dealt with
Employer must show that conduct was the reason for dismissal
It is for the employer to show that conduct was the reason for dismissal. For the purposes of establishing the reason for dismissal, the employer only needs to have a genuine belief in the employee’s misconduct; the belief does not have to be correct or justified.
Fairness: was it reasonable to dismiss in the circumstances?
The starting point for determining whether a dismissal for misconduct is fair is the statutory test set out in section 98(4) of ERA 1996.
A body of case law has developed on the approach an employer needs to take and on the conclusions that the employer needs to reach for it to be reasonable, and so fair, to treat the identified misconduct as a sufficient reason for dismissal.
The statutory test: section 98(4) of ERA 1996
The statutory test requires a tribunal to ask whether, having regard to the reason identified by the employer for the dismissal, in the circumstances (including that employer’s size and administrative resources), the employer acted reasonably in dismissing for that reason. This often results in a tribunal asking two questions:
- Did the employer undertake a fair investigation in reaching the decision to dismiss?
- Did the employer act reasonably in treating the misconduct it identified as a sufficient reason for dismissal?
Gross Misconduct
An employer may dismiss fairly for gross misconduct without prior warnings and without notice. The term “gross misconduct” connotes the most serious types of misconduct, such as theft or violence, warranting instant dismissal.
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Effective measures an employer can consider taking
‘Faced with a challenging discrimination claim, a first for us, Herefords guided throughout, we were able to successfully defend the claim and get some of our costs back too. Recommend highly’ – Managing Director
- Investigating the extent of the potential problem in its business identifying areas of risk.
- Creating a workplace culture of zero-tolerance to harassment and where all employees are encouraged to report inappropriate behaviour.
- Having an effective anti-harassment policy that clearly sets out what conduct is unacceptable, the employer’s zero-tolerance approach to such conduct, how employees can report inappropriate conduct, the process that will be followed and the support available for victims of harassment and those who report it.
- Having effective reporting mechanisms in place and ensuring all employees are aware of them
- Ensuring managers deal with complaints of harassment quickly, effectively and in a sensitive way, that the perpetrators of harassment are sanctioned, and those who report harassment are protected from victimisation
- Providing anti-harassment training for all employees, given from induction onwards, and specific training for managers in how to deal with complaints of harassment.
- Having nominated employees to monitor harassment issues and offer support to victims of harassment
- Ensuring third parties such as suppliers and customers are aware of the employer’s zero-tolerance policy to harassment and that employees are aware that it will take reports of harassment by third parties seriously
- Making it clear to employees that harassment of all those they come into contact with at work will not be tolerated
- Ensuring its policies provide adequate protection and the right to report sexual harassment to all workers
- Requiring settlement agreements in sexual harassment claims to be signed off or reviewed at board level to ensure the effective monitoring of the number of claims
