Employees behaving badly: Part 1

By: Michael Scutt

Date: 15 September 2010

As the school holidays thankfully draw to a close and parents can look forward to someone else getting paid to entertain, educate and admonish their delightful offspring for the next few months, my thoughts have remained with conduct and discipline.

Fighting lollipop kidsIt occurs to me that in many workplace disputes there is little to distinguish two employees sparring with each other from a five-year old kicking his sister for playing with the “wrong” toy. The main difference is how you resolve the dispute, the Masters and Servants Act 1867 - which treated “aggravated breach of contract” by employees as a criminal offence punishable by imprisonment and hard labour – having been abolished.

So, leaving aside flogging and imprisonment, how do employers deal with conduct issues in the workplace or, even more difficult, “misbehaviour” outside office hours that somehow involves the employer? What is misconduct and what penalties can be applied to the miscreant? 

First things first. There is no one standard definition of misconduct; it is a question of circumstance and fact. Obviously some behaviours, such as stealing, swearing, refusal to work, being abusive to colleagues or managers, aggression, lateness and absenteeism are, in principle, fairly clear cut: the problem is determining that they have occurred.

Boxing business manMost decent employment contracts or handbooks usually contain a list of behaviours that are considered misconduct, or capable of amounting to it. And every employer, whatever its size, must also have a disciplinary and grievance policy.

Discipline law has been under much scrutiny since 2004 when the last government introduced a statutory procedure with the aim of reducing the number of tribunal claims - in practice it had the opposite effect, principally because tribunals had the power to adjust compensation payments if either party departed from the set procedure.

In 2009 the system was replaced by a simpler procedure governed by the Acas Code of Practice, which tribunals are generally required by law to take into account . Admirably succinct at 11 pages, the Code is supplemented by hefty (but not legally binding) guidance at 88 pages in length. Tribunals retain the power to adjust an award where there has been an unreasonable breach, but this is now very much a matter of exercising discretion (rather than mandatory).

What are the procedures? Acas’ emphasis is for the employer to conduct a full investigation of any allegations of misconduct as soon as the issue arises. In some cases it may be necessary to suspend the employee. Care should be taken in this situation as suspension is not a disciplinary tool and should be imposed for as short a time as possible. The employer should also write to the employee clearly stating that the suspension is not to be seen as prejudging the outcome and confirming that the employee will continue to be paid. 

Once the investigation has taken place, the employer needs to decide if the allegations hold water, and, if so, take further action.

Read Part 2 to find out how to implement disciplinary measures.

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