Rhian Lloyd, Business Consultant at Aspire Business Partnership LLP, discusses dealing with misconduct in and outside of work and how employers should be prepared should the issue arise.

Misconduct is behaviour that an employer deems inappropriate for an employee. There can be minor forms of misconduct, or gross misconduct, which is more serious. Gross misconduct is when an employee behaves in a way so that it destroys the employer/employee relationship. It is important for an employer to set out standards of conduct at work so it is clear that employees know what is expected of them and this should include the type of behaviour which would be classed as gross misconduct, usually within the Staff Handbook.. Behaviour that constitutes gross misconduct has serious impact or consequences on the company and could include;

• fighting
• theft
•  fraud or falsifying documents
• malicious damage to company property
• bullying or harassment
•  serious infringement of health and safety rules
• posting direct or indirect grievances referring to the company on social media
• misuse of computer equipment and
•  serious breaches of the company’s rules, policies and/or procedures.

It is wise to say that any list, whether this is included in the Contract of Employment or Employee Handbook, is not intended to be exclusive.

With the increasing use of social media, the issue of misconduct outside work is more likely to arise with more people are sharing their experiences, opinions and photos at every opportunity. This is why it is becoming increasingly important for companies to have social media policies within their Staff Handbook. An employee’s behaviour may be placed under scrutiny if it is likely to impact on the performance of their contract or the reputation of the employer. When the issue of misconduct outside work does find its way into the workplace, employers must investigate allegations fully before deciding whether the employee’s actions should result in disciplinary action.

It is vital that any disciplinary action taken must be in accordance with the employer’s disciplinary policy and procedures, ensuring that the written procedures regarding misconduct are followed.  Failure to do so can mean that any action taken cannot be supported and the employee could potentially claim against the employer.

Case Law

Events which happened outside the workplace but had a direct effect within it are described in the case ofEggleton v Kerry Foods Ltd. An employee, Mr Eggleton, was dismissed for a fundamental breach of trust after having a fight off-site with a colleague, Mr White. There had been an ongoing dispute between the two colleagues but their Manager took the relevant steps in an attempt to clear the air and sort out their issues. He warned Mr Eggleton if there were further incidents he would take disciplinary action against him, and gave Mr White a verbal warning also. However, the attempt to resolve their differences did not work and a fight took place in a car park over the road from their workplace. After the fight occurred Mr White said he did not feel safe in the workplace and wanted to resign, therefore the Manager decided to dismiss Mr Eggleton on the ground of fundamental breach of trust as he recognised it was his duty as a manager to provide a safe place for his employees to work under his charge. The act was considered as gross misconduct; however the Manager took into account the good record and length of service of Mr Eggleton. The decision was appealed by Mr Eggleton however the Employment Appeal Tribunal upheld the decision.

The crucial finding of the Tribunal in this case was that even though the incident did not occur at the workplace, it clearly affected the working arrangements.

If you need help to develop suitable disciplinary and grievance policy and procedures, if you need an update in light of the advance in social media or if you have an issue with a member of staff contact us at Aspire Partnership LLP by calling 0121 445 6178 or email us atenquire@aspirepartnership.co.uk.