Dismissed for misconduct: the law and your rights

A man carrying a cardboard box away from his workplace

Being dismissed from your employment can be a devastating blow. If you have over two years continuous service, you have a right not to be unfairly dismissed. This is a frequently litigated, and often confusing, area of law.

In order to defend an unfair dismissal claim, it is for the employer to show that it had a fair reason for dismissal. Conduct, capability, some other substantial reason, and redundancy are all fair reasons for dismissal. This short article will consider the relevant law in circumstances where an employee has been dismissed for misconduct.

Theft, breach of company discipline, dishonesty, gross negligence, gross insubordination, aggressive and abusive behaviour, unauthorised absence and failure to comply with a reasonable management instruction, are commonly held as conduct offences which could justify dismissal. Often an employer will have a disciplinary policy which sets out how it categorises misconduct offences.

Please bear in mind that where the employer categorises the conduct offence as “gross misconduct” and summarily dismisses you, this means they can do so with immediate effect and with no notice given.

In terms of the legal test the tribunal will apply in conduct dismissal cases, each case will turn on its own facts and the Employment Appeal Tribunal has always refused to offer specific guidance on how tribunals should approach unfair dismissal claims depending on types of conduct.

If the employer discharges their burden in establishing conduct as the fair reason to dismiss, the tribunal has to consider three aspects of the employer's conduct, known as the Burchell test. Firstly, did the employer carry out an investigation into the matter that was reasonable in the circumstances of the case; secondly, did the employer believe that the employee was guilty of the misconduct complained of and; thirdly, did the employer have reasonable grounds for that belief.

If the answer to each of those questions is “yes”, the tribunal must then decide on the reasonableness of the response by the employer. In performing this exercise, the tribunal must consider, by the objective standards of the hypothetical reasonable employer, rather than by reference to the tribunal's own subjective views, whether the employer has acted within a “band or range of reasonable responses” to the particular misconduct found of the particular employee. If the employer has acted in this way, then the employer's decision to dismiss will be reasonable. When determining whether or not dismissal is a fair sanction, a tribunal cannot substitute its own view of the appropriate penalty for that of the employer.

  • The ACAS Code of Practice on Disciplinary and Grievance procedures introduced in 2009 (and reissued in 2014) sets out matters that may be taken into account by tribunals when assessing the reasonableness of a dismissal on the grounds of conduct. This will include those elements of fairness set out in paragraph 4 of the code as follows:
  • Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions.
  • Employers and employees should act consistently.
  • Employers should carry out any necessary investigations, to establish the facts of the case.
  • Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made.
  • Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting.
  • Employers should allow an employee to appeal against any formal decision made.

If you think you may have been unfairly dismissed, you should appeal the decision to dismiss as a priority.

Please note that the limitation period for lodging a tribunal claim for unfair dismissal is three months minus one day from the date of the dismissal.

If you have been unfairly dismissed and are looking for advice, please do not hesitate to contact our approachable expert employment law team.

Email Alice Bowman
Call our employment law team free on 0808 560 0872
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