Conduct Dismissal

Once the employer has established that conduct was the reason for the dismissal, the next stage is to consider the reasonableness of the dismissal in all the circumstances. Dealing with the issue of substantive fairness, it is important to consider the Burchell test A dismissal for misconduct will only be fair if, at the time of dismissal:

• the employer had an honest belief that the employee was guilty of misconduct;

• the employer had reasonable grounds for believing that the employee was guilty of that misconduct; and

• at the time it held that belief, it had carried out as much investigation as was reasonable.

In determining fairness, the tribunal will not consider whether the employee was actually guilty of the misconduct, but whether the employer believed, and had reasonable grounds for believing, that the employee was guilty of the misconduct at the time. To have reasonable grounds for the belief, the employer must have conducted a reasonable investigation into the alleged misconduct.

Band of reasonable responses

Having done so, the next question will be whether the decision to dismiss and the investigation carried out fell within the band of reasonable responses available to a reasonable employer in the circumstances. In some situations, it may be fair for an employer to dismiss in situations where an employee is subsequently found not to be guilty of the alleged misconduct.

Conduct Dismissals

Conduct issues are wide-ranging, covering failure to follow lawful instructions to engaging in activities outside the workplace that damage the employment relationship. Some examples include downloading pornography at work, setting up in competition with the employer, unauthorised absences, drink and drug use, and theft.

Gross misconduct would usually allow the employer to dismiss without notice (i.e. summarily dismiss). However, it is important to note that an employer can dismiss in misconduct cases even if the reason does not amount to gross misconduct. In both misconduct and gross misconduct cases the employer may be able to dismiss but is obliged to follow a procedure which is fair overall. The Tribunal will also take into account other factors, such as:

1. size of employer - a large employer will be expected to carry out a more thorough procedure than an employer who has only a handful of employees;
   

2. length of service of the employee - a Tribunal may expect an employee who had been employed for many years to be treated more leniently than an employee who had only recently joined an organisation;
   

3. disciplinary record of the employee - a Tribunal may expect an employer to treat an employee with an unblemished disciplinary record more leniently than one who had had several warnings in the past;

4. consistency of treatment - if, in the past, a warning (rather than a dismissal) had always been the maximum sanction for a particular offence, then a Tribunal may, depending on the facts of the case, find it unfair if the employer dismissed an employee for that same offence; and

5. nature of offence.

ACAS Code

The employer should ensure it follows its own procedure (if it has one), in addition to the ACAS Code.  As discussed the first key stresses the importance of an adequate investigation. This should involve meeting with the employee to ask questions about the misconduct; discuss the evidence obtained and allow them the opportunity to respond. The investigatory meeting should be a fact-finding opportunity; not a disciplinary exercise. 

Warning System

For misconduct not amounting to gross misconduct, the employer should undertake a warning system. The employer should not dismiss for the first act of misconduct, but instead should give a first written warning, depending on the nature of the misconduct.  If the first act of misconduct is suitably serious, the ACAS Code states that the employer might proceed to a final written warning.  An employer should only dismiss for a one-off act of misconduct if it is so serious it constitutes gross misconduct.  Even in cases of gross misconduct, the employer must follow procedure. The employer’s own procedures and policies will very often give examples of acts the employer regards as acts of gross misconduct.