What You Should and Should Not Do When Suspecting Employee Misconduct in England

Employment misconduct is when your staff behave in a manner which is not acceptable or is improper. It could be a one-off act or a series of acts. As misconduct can cause damage to your business, such as its property or reputation, you may take disciplinary action against your employee. Nevertheless, it is crucial that when you suspect employee misconduct, you deal with it correctly to avoid facing an employment tribunal claim. Therefore, this article outlines some actions you should and should not take when suspecting employment misconduct. 

Refer to the Definition of Misconduct in Your Disciplinary and Grievance Policy

If you suspect your employee has committed misconduct in their employment, you must ensure that the action you accuse them of is misconduct. Whether the employee’s conduct is misconduct will ultimately determine the procedure you take and the action which results from this. Therefore, you should refer to your workplace’s disciplinary and grievance policy. 

Try To Resolve the Potential Misconduct Informally

Any potential workplace misconduct can result in you using your disciplinary and grievance procedure to carry out disciplinary action. However, before undertaking your disciplinary procedures, it is good practice to see if you can resolve the issue informally. This can save you time and result in a satisfactory conclusion. A way to resolve potential misconduct is by talking privately to the staff concerned to listen to their point of view.

Distinguish Between Misconduct or Gross Misconduct

The severity of the misconduct will determine the disciplinary action you may take. For example, general misconduct may result in a formal warning. On the other hand, gross misconduct can result in dismissal and potentially dismissal without notice. This is because gross conduct has a severe effect.

Examples of general misconduct are where your employee:

• pretends to be sick to take time off work; or
• does not work in a way that is consistent with your requests.

However, gross misconduct might be where your employee:

• harasses or bullies other staff;
• damages property; or
• misuses your business name to make a personal gain.

Do Not Forget To Carry Out an Investigation

If you suspect an employee has engaged in misconduct, you must investigate the matter to establish the facts. This should be part of your disciplinary and grievance procedure since it forms part of a full and fair procedure. On the other hand, if there is no dispute about the fact that misconduct has occurred, an investigation may not be necessary. 

Do Not Unnecessarily Suspend Your Employee

When you suspect a staff member has engaged in misconduct, there are occasions where you may need to suspend them from work while carrying out an investigation. This may ensure that an investigation can occur without unnecessary interference. 

However, you should not suspend an employee unless you are sure it is the right thing to do. When you decide suspension is appropriate, you must still give your employee their full pay. Otherwise, you could face an employment tribunal claim for constructive dismissal.

You may suspend your employee suspected of misconduct at work where, for example:

• the type of misconduct alleged warrants summary dismissal;
• they have allegedly carried out theft, violence or threatened violence;
• you suspect your employee may try to damage evidence in the workplace; or
• your employee may prejudice your investigation.

Key Takeaways

If you suspect an employee has engaged in workplace misconduct, you should try to resolve the issue immediately. When addressing misconduct, there are specific actions you should ensure you take. For example, you should establish whether the potential misconduct is general or gross, as this will determine how you approach your disciplinary procedure. You should also ensure you do not unnecessarily suspend your employee from work during an investigation.

If you need help understanding what to do when suspecting misconduct in employment in England, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.

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