Have you been accused of misconduct at work?
If you're facing misconduct allegations at work, it's normal to worry about what might happen and how you can defend yourself against such claims. These kinds of accusations can put your job at risk, potentially affecting every area of your life, not just the professional.
While you might be tempted to bury your head in the sand, the best course of action is to act fast, taking steps to understand the situation and what your options may be.
At Lawhive, we understand how tough it can be to deal with misconduct allegations. If you need advice and support, our network of employment lawyers is here to help you deal with a misconduct allegation effectively.
Book a free case evaluation from our Legal Assessment Team today.
What is misconduct at work?
Misconduct at work means behaving in an unacceptable or improper way, which can lead to disciplinary action.
There are two types of misconduct: general and gross.
Each workplace has its own definition and interpretation of what is classed as misconduct.
Employers should clearly explain in their employee handbook what actions and behaviours could be considered gross misconduct. They should also outline the process that may follow misconduct allegations and the potential consequences.
What is gross misconduct?
Gross misconduct involves severe behaviour that damages the relationship between the employer and employee beyond repair, leading to instant dismissal.
Behaviour classed as gross misconduct may be illegal, unprofessional, negligent, or unethical.
What is the difference between misconduct and gross misconduct?
General misconduct may only happen once with no significant harm to the trust between employee and employer. Sometimes, it's unintentional and the impact of the behaviour is limited in how it affects others. General misconduct most often leads to disciplinary action being taken against an employee, which does not always lead to dismissal.
Gross misconduct, sometimes called serious misconduct, is so named because it damages or weakens the employer's trust in the employee to a point where the employment relationship cannot continue. As a result, gross misconduct often leads to the dismissal of the employee because of how serious it is.
The key difference between the two lies in the severity of the behaviour and its impact on the business, other employees, and clients or customers.
What is classed as misconduct?
Some examples of misconduct include:
Breaching confidentiality;
Consistent lateness;
Refusing to cooperate;
Missing meetings;
Using inappropriate or offensive language;
Unethical relationships;
Bullying;
Sexual harassment;
Discriminatory behaviour based on protected characteristics;
Stealing from the company or customers;
Defrauding clients;
Misappropriation of funds;
Being intoxicated on the job;
Keeping drugs or alcohol at work.
What should you do if you're accused of misconduct at work?
If you're accused of misconduct at work, try to stay calm. Under the Employment Rights Act 1996, you're entitled to a fair dismissal process, and your employer must follow the rules of the law and what's in your employment contract.
So, even though it's overwhelming, take a deep breath and remember: you have options, and there may be ways to defend yourself.
Find out exactly what you're being accused of
Before you do anything, make sure you fully understand what you're being accused of.
Your employer should clearly tell you what they think you did wrong. If you're asked to attend a disciplinary meeting, don't just accept vague explanations. This could leave you unprepared if you're surprised by new information or accusations during the meeting. You have the right to ask your employer for more details before attending any meeting. If they refuse and still want you to attend, explain that it's unfair to expect you to go without knowing exactly what you're accused of. Ideally, you should know:
When and where the alleged misconduct took place
If there were any witnesses
What other evidence your employer has
Whether the accusations are serious enough for them to consider dismissing you.
Many employees go to disciplinary hearings thinking the accusation is minor, not realising their job could be on the line. It's crucial to know the details of the accusation, the evidence against you, and what consequences you might face, like disciplinary action or losing your job.
Ask for copies of the evidence
If there were witnesses to the alleged misconduct, your employer might have gathered witness statements. Ask for copies of these.
Additionally, request copies of any non-witness evidence, such as written correspondence (emails, texts, letters), CCTV footage, or photographs. If your employer refuses to provide copies of all the evidence related to the allegations, tell them it's unfair to question you without giving you a chance to review the evidence on which the accusation is based.
Know your rights
Your employer can take disciplinary action if there are issues with your behaviour at work or allegations of misconduct.
While gross misconduct can lead to dismissal, employers must follow a fair process. If they don't and you're fired, whether the allegations of misconduct are true or not, you might be able to claim unfair dismissal.
That's why it's important to know the process your employer should follow when handling misconduct allegations and take reasonable action to protect your interests using the law.
Understand your employer's disciplinary procedure
If you're accused of misconduct, you should know what steps your employer will take and their procedure.
Ask for a copy of the Disciplinary Procedure and familiarise yourself with the ACAS Code of Practice, which sets the minimum standards for employers in disciplinary matters.
If your employer doesn't follow the ACAS Code of Practice or their procedures, like missing deadlines or not providing documentation, you can complain.
Collect your own evidence
In employment matters, our line is that formal legal action, like taking your employer to the tribunal, should always be a last resort.
In the first instance you should try and sort things out with your employer.
But, if you're defending yourself against a misconduct allegation, it's good to take the stance that the matter might end up in front of a tribunal someday and, as such, collect your own evidence like:
Keeping a log of all interactions (like phone calls, video chats, texts, emails, letters and face to face conversations) between you, your boss, and coworkers, including who you talked to, when, what was said, and any agreements made;
Make copies of all written communications you get along with the date and time they were received.
It's a smart move to keep communications in writing whenever possible, and if you're sending emails, turning on read receipts can be helpful.
While you might still need to have verbal conversations, making sure important details are documented gives you a clear record to back up your points or defend yourself against any accusations.
Consider your response
If you deny misconduct allegations, you'll need evidence to support your defense. If you admit to the allegations, you might be able to provide compelling reasons or mitigating factors to explain what happened. Once you've gathered evidence from your employer, understood the processes and laws involved, and collected your own evidence, take some time to think about how you want to respond to the allegations. You might also consider seeking advice from an employment lawyer if you're unsure about anything. They can offer impartial support and guidance, which can be incredibly helpful and reduce the stress of dealing with the situation on your own.
What is the disciplinary procedure for general misconduct?
To ensure fairness in disciplinary procedures for general misconduct employers should:
Arrange a first disciplinary meeting
Ahead of this meeting, employers should clearly explain the reasons for the meeting and provide any evidence they have on the matter to make sure the employee is informed and fully understands the details and seriousness of the misconduct allegations against them.
The aim of this first meeting is to bring the allegations to attention and give the employee a chance to explain themselves.
Sometimes, this first meeting is enough for all parties to gain clarity and no further action may be needed. However, if an employer isn't satisfied with the employees explanation then they may...
Issue a first written warning
In this written warning, employers should lay out clearly what improvement is expected from the employee and over what time period.
They should also make it clear what will happen if the employee does not make the required improvements, for example they will receive a final written warning.
Arrange a second disciplinary meeting
If an employee's conduct or behaviour does not improve in line with the first written warning, employers should arrange a second meeting. Again, they should give the employee another chance to explain themselves.
Issue a final written warning
If an employer still isn't satisfied, they may issue a final written warning. In this, they may adjust the action plan with new deadlines. Most importantly, it should be made clear to the employee that if there's still no improvement within this time it could lead to dismissal.
Arrange a third disciplinary meeting
If behaviour or performance is still not up to standard by the deadline given in the final written warning, employers should arrange a third meeting and warn the employee that dismissal is now a possible outcome of the matter.
Following the meeting, employers should decide whether to give the employee another chance to improve or dismiss them.
What is the disciplinary procedure for serious misconduct?
In the event of serious misconduct, where the employees behaviour is severe enough to have caused significant harm to the company, employers can give a single 'first and final' written warning.
In doing this, they should make it clear to the receiving employee that if they do not improve within the stated timeframe, it could result in their dismissal.
What is the disciplinary procedure for gross misconduct?
Gross misconduct involves serious offences by an employee like theft, acts of physical violence, or gross negligence.
In cases of gross misconduct, employers can dismiss the employee immediately, however they must still follow a fair procedure to determine the truth of allegations like investigating the incident and give the employee a chance to respond to allegations before being dismissed.
At some point, you'll be asked to attend a meeting to discuss misconduct allegations against you. If you follow all of the tips above, you should already be armed with all the information you need to defend yourself.
When you are invited to a disciplinary meetings you should attend as it is your opportunity to defend yourself against misconduct accusations.
To prepare for the meeting, you should:
Write down everything you want to say beforehand;
Ask a colleague or union rep to the meeting (you have a legal right to do this, although if you want to bring anyone else you may have to ask permission from your employer).
If you think recording the meeting may be helpful, you can ask for permission to do this, but your employer doesn't have to say yes. If they refuse, ask the colleague you intend to bring or your union rep to make thorough notes of the meeting.
You should also ask your employer to send you a written summary of the meeting including any agreements or next steps outline over the course of it. And if they don't send this to you in good time, follow up with them.