Summary
- Misconduct in the workplace falls into three categories – ordinary, serious, and gross – each requiring a different level of response from employers before dismissal can be considered.
- Ordinary misconduct typically requires informal discussions and written warnings before dismissal; serious misconduct allows for a shorter process; and gross misconduct can justify immediate dismissal without notice or pay in lieu of notice.
- Regardless of the type of misconduct, employers must follow a fair procedure, adhere to the ACAS Code of Practice on disciplinary and grievance procedures, and ensure any dismissal cannot be challenged as unfair or discriminatory.
- This article is a guide to managing employee misconduct for employers operating in England and Wales, produced by LegalVision, a commercial law firm.
- LegalVision specialises in advising clients on employment law and disciplinary procedures.
Tips for Businesses
Maintain a clear misconduct and disciplinary policy in your staff handbook and ensure all employees are aware of it. Keep records of all incidents, meetings, and warnings. Even in gross misconduct cases, investigate thoroughly and allow the employee to respond before acting, as procedural failures can result in unfair dismissal claims.
As an employer, there will be times when your employees do not follow workplace rules. These actions may vary in severity and can amount to ordinary, serious, or gross misconduct. While all instances involve inappropriate employee behaviour, there are significant differences between each level. You must understand these differences so that the actions you take are appropriate and do not result in accusations of unfair dismissal or discrimination. This article will explain the differences between different types of misconduct and relevant ways to respond to them.
What is Ordinary Misconduct?
As an employer, you are likely to have company rules in place, such as those in your employee’s employment contract. There may also be implied rules within the workplace. Your contracts would not spell these out, but your employee should reasonably expect them to exist.
What is Serious Misconduct?
Employee misconduct can constitute more serious behaviour than ordinary misconduct. As an employer, you may have an internal procedure in place to help distinguish between different types of conduct.
Serious misconduct is where an employee’s behaviour has caused severe harm to the business or organisation. This could be:
- an error made by an employee when calculating their expense and causing financial loss to your business; or
- damage to your business’ image or reputation through social media.
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What is Gross Misconduct?
Employee gross misconduct is where your employee has carried out a grave act, or the effect of what your employee has done is very serious, such as:
- being physically violent;
- stealing; or
- committing gross negligence.
The serious act could have been committed away from the workplace but, in doing so, reflected poorly on your business.
This factsheet outlines key developments in 2025 affecting workforce management. In particular, the proposed Employment Rights Bill (2024) will drive significant changes, anticipated to start late 2025.
What are the Key Differences?
When you are faced with employee misconduct, you may consider the possibility of dismissal. There are five fair reasons for dismissal, including employee misconduct.
Apart from the critical differences between ordinary employee misconduct, serious misconduct, and gross misconduct, one of the critical differences is how you can deal with each before considering dismissal.
How Should I Respond to Different Types of Misconduct?
The table below outlines key steps you should take depending on the type of misconduct your employee has engaged in. In general, it is a good idea to have a strong company policy that outlines misconduct measures, as well as dismissal procedures where applicable. You should ensure that all employees are aware of such policy to avoid miscommunication and future disputes.
Ordinary Misconduct | When you are faced with employee misconduct, and it is a one-off incident, you may choose to conduct an informal discussion with the employee. Where it is not a one-off incident, you should allow the employee to explain themselves in a pre-arranged meeting. Additionally, you should give your employee a written warning if their reasoning is unjustified, detailing how you expect them to change their behaviour and offer a warning. If the employee does not improve, you should hold another meeting and agree on a time frame for your employee to improve. You should notify them that failure to improve could result in their dismissal. |
Serious Misconduct | When you have to deal with serious misconduct, the procedures before potential employee dismissal are shorter and swifter than for employee ordinary misconduct. In such instances, there is no requirement to issue more than one written warning to the employee detailing the risk of dismissal before carrying out an employee dismissal if their conduct does not improve. Ultimately, you should follow the procedure in your staff handbook. |
Gross Misconduct | When dealing with employee gross misconduct, you can dismiss the employee immediately. However, it is vital to ensure that you can demonstrate that you have followed a fair procedure in doing so where you have investigated the allegation and allowed your employee the opportunity to give their side of the story. This means that you have proved the employee’s gross misconduct before taking the appropriate action. Dismissal can be carried out without notice or pay in lieu of notice. Pay in lieu of notice is where your employee stops work immediately, but you pay them for what would have been their standard period of notice. It is essential that when dealing with dismissal, regardless of which type of misconduct, you adhere to the Acas Code of Practice on disciplinary and grievance procedures, as well as your staff handbook, to ensure that you carry it out fairly. |
Key Takeaways
If your employee breaks your workplace rules or misbehaves, they could be committing ordinary, serious or gross misconduct. However, the severity of the misconduct will determine what actions you can take to address it. Therefore, you must understand each type to ensure you get it right as an employer. Furthermore, the method for dealing with each type of misconduct is different, and may not always give you the right to dismiss immediately. As a result, you should also develop clear, well-understood measures and procedures for dealing with misconduct that employees are aware of.
If you need help with rules regarding employee misconduct, LegalVision provides ongoing legal support for businesses through our fixed-fee legal membership. Our experienced employment lawyers help businesses manage contracts, employment law, disputes, intellectual property, and more, with unlimited access to specialist lawyers for a fixed monthly fee. To learn more about LegalVision’s legal membership, call 0808 196 8584 or visit our membership page.
Frequently Asked Questions
Suppose your employee has committed ordinary misconduct, and the incident appears to be a one-off. You can use your discretion as to whether or not the formal procedure of meetings and letters is required or whether the incident can be responded to with an informal discussion. However, should the behaviour be repetitive behaviour, an employer should respond with the formal disciplinary procedure before potential dismissal.
If your employee is accused of gross misconduct, you can immediately dismiss them, provided you have proven the allegation. This means that you should have investigated the accusation and allowed them to provide their side of the story.
Yes. If an employee commits an act of gross misconduct outside the workplace that reflects poorly on your business, you can still dismiss them. The key factor is whether their conduct has a negative impact on your business or its reputation.
While not strictly required, having a clear written misconduct policy is strongly advisable. It outlines expected behaviour, disciplinary procedures, and dismissal grounds, helping you avoid disputes, unfair dismissal claims, and ensuring all employees understand the consequences of misconduct.
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