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A misconduct process is a classic case when businesses can struggle to follow a clear and precise process. With emotions often running high, it can be easy to make mistakes. However, no matter what an employee may have done, there is still a strict obligation on a business to follow a fair and reasonable misconduct process. This article sets out three common mistakes in a misconduct process for employers to be aware of, including:

  • making a final decision too quickly; 
  • treating employees inconsistently; and 
  • asking biased or otherwise unfair questions throughout the process.

Making a Decision Too Quickly

Making a decision too quickly or before a proper investigation is a costly decision. No matter what an employee has done, they are entitled under employment law to a fair and reasonable process before you decide upon a consequence. Too many employers think they can dismiss an employee without going through a process like an investigation. If you find yourself conducting a misconduct process, you must try to ascertain exactly what happened in the misconduct or alleged misconduct. Also, remember to get the employee’s side of the story or give them a chance to get advice and support.

You might be sure an employee has done a particular act in question. Likewise, you might consider this act to be serious enough to justify dismissal. Still, you cannot dismiss an employee without following a fair process. In the heat of a disciplinary issue, you might find yourself cutting corners or rushing to resolve the issue. While there is no issue with moving promptly, you still need to gather all relevant facts and give the employee a chance to give their views. Otherwise, you risk an employee successfully raising a personal grievance claim even if they did commit misconduct. 

Treating Employees Inconsistently

A more subtle issue that employers can face is treating employees inconsistently when misconduct occurs. Your business needs to be even-handed in treating employees the same way when they make the same mistake. This is relevant if something has happened in recent history and you treated an employee a certain way. You cannot then treat the current misbehaving employee differently. Also, if two employees have both participated in the act of misconduct, you must handle their misconduct in the same manner.

When employees have done the same wrong act, you cannot treat one misconduct process very seriously and let the other employee off. This is the case even if one employee is more senior or experienced than the other. Treating employees differently over the same issue is not a fair process. 

Asking Biased or Leading Questions

Finally, be aware that it will be a breach of good faith and your employment obligations to ask overly biased or leading questions. You might think that conducting a meeting or investigation with an employee who has allegedly committed misconduct is the right step. Still, you must also be careful of the questions you ask. While emotions in these meetings can run high, you still need to be fair and reasonable with the employee. You cannot jump to conclusions without first hearing the employee’s side of the story. Even then, you cannot ask questions of the employee that suggest you have already made your mind up about whether they are guilty or not of the misconduct. 

Key Takeaways

Misconduct processes can be challenging. It is important to remember your good faith obligation towards the employee throughout the process and the other specific requirements that flow from your good faith obligation. These include needing to keep an open mind and not jumping to any hasty decisions or conclusions. No matter the state of affairs following misconduct, you should try to follow a fair and reasonable process that gives the employee the benefit of the doubt and the chance to give their view. It can sometimes be a good idea to involve a third party or investigator to ensure this objectivity. If you want to know more about running an effective misconduct process, contact LegalVision’s employment lawyers on 0800 005 570 or complete the form on this page.

Frequently Asked Questions

Do you always need an external investigator?

No, this is not legally required. However, an investigator can help run a fair and reasonable process. This involves interviewing all relevant parties and handling those meetings objectively and impartially.

When is a question in a misconduct meeting biased or leading?

Your questions in a misconduct meeting should relate to gathering facts and the employee’s side of the story, whatever that may be. It is not the place to fire accusations or other leading questions that suggest you have already made up your mind about whatever the allegations are. It is crucial to stay impartial and genuinely listen to what your employee has to say.

Do you have to treat all employees party to misconduct the same?

Yes, your starting point should be to treat all employees who have committed the same misconduct (or who are alleged to have done so) in the same manner. While there can sometimes be different considerations if one employee was a ringleader or a senior leader, you should be careful when adjusting your process and seek legal advice about managing this kind of situation.

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