Top 5 Mistakes Managers Make…With Misconduct

1. Overreacting

Upon discovering potential misconduct, it is easy for managers to have a ‘knee-jerk reaction’ and suspend the employee immediately or prevent the employee from contacting his or her colleagues and/or accessing work systems. Whilst this may be appropriate in some cases, it will not always be, and it will largely depend on the nature of the allegations the employee is facing. You should bear in mind that you will not have complete information about the situation until you have heard the employee’s side of the story.

If you do take the decision to suspend the employee, you should try to keep the suspension as short as possible and under regular review. The employee should not be suspended for any longer than is necessary.

A hasty reaction may also make it harder for you to comply with ACAS Code which sets out guidance for employers on dealing with disciplinary procedures. Whilst this is not legally binding, non-compliance can affect the amount of compensation that an employee is awarded if their claim for unfair dismissal claim is successful in the employment tribunal.

2. Conducting an inadequate investigation

It is also easy for managers to jump to conclusions when allegations are made against an employee. This should always be avoided. A manager should conduct an investigation to establish a fair and balanced view of the facts relating to any disciplinary allegations. The amount of investigation required will depend on the nature of the allegations and will vary from case to case.

When conducting an investigation, managers should ensure they remain as impartial and objective as possible.

Failure to take these steps may mean that the dismissal is procedurally unfair even if the decision to dismiss was itself reasonable.

3. Not giving the employee a fair opportunity to respond

An employee must be given full details of the allegations together with copies of any relevant documents or witnesses statements in advance of the disciplinary hearing.

At a disciplinary hearing, the employee should be given the opportunity to explain the allegations. The employee may be able to show that the whole thing is a misunderstanding. Alternatively, if they are guilty of the acts they are accused of, they may be able to put forward mitigating factors which you should take into consideration when assessing the appropriate sanction.

4. Ignoring the employee’s track record

Employers should consider the full range of sanctions available before deciding which to impose and bear in mind the individual’s past behaviour.

If the employee has no previous history of misconduct, it may be that a warning is a more appropriate sanction. In such cases, dismissal would normally only be justified if the employee’s actions amount to gross misconduct.

5. Not offering an adequate appeal

Appeals are an important part of the disciplinary process. Aside from forming part of the ACAS Code, an appeal can also be a useful way for an employer to correct mistakes that it made in the initial disciplinary process.

Depending on the circumstances, an appeal hearing can be a complete re-hearing of the matter or just a review of the fairness of the original decision

The appeal hearing should be conducted as impartially as possible, ideally by a more senior manager who has not been previously involved in the case

Marguerite Perin and Sarah Owbridge are paralegals at leading senior executive employment law firm BDBF.