Introducing Gross Misconduct in Workplace
In this article, I aim to introduce misconduct in workplace. Misconduct, the second ground for dismissal recognised by the Employment Protection (Consolidation) Act, covers a multitude of sins. There is no exact legal definition for misconduct, so it is up to case law that will be providing us with guidance on what constitutes misconduct.
Employees’ conduct, among others, that could be misconduct could include the following:
1. Serious disobedience: an employer seeking to dismiss for serious disobedience must establish, first of all, that the order which he says was disobeyed was a lawful and reasonable one. Orders are lawful and reasonable if and insofar as they are within the terms of the employment contract. Instances of disobedience include:
1.1. An industrial relations manager’s refusal to attend a company meeting
to discuss his policies: Lambsdale v H.M.S.O (1975)
1.2. Nurse refusing to treat patients: Riley v Kirklees A.H.A (1977)
1.3. Hospital porter’s refusal to empty bins: Atkin v Enfield Hospital (1975)
2. Absenteeism: It is worth mentioning that, generally speaking, misconduct in the form of poor time keeping does not warrant dismissal without evidence of a record, accompanied by suitable warnings. Employers will already be warned to be careful not to take a person’s job because he has lost a minute here or there.
3. Sexual harassment: Under the Work Protection (Amendment of Equality Act 2010) 2023, employers are required to discipline or hold accountable employees found guilty of sexual harassment. According to ACAS, workplace sexual harassment includes, among other things, making sexual remarks about someone's body or appearance, touching someone without consent, making inappropriate sexual comments, and more. If you have been subjected to sexual harassment at work, it is advisable to file a grievance with the HR department. By law, the employer must investigate the reported sexual harassment.
If an employee engages in misconduct that is severe enough to irreparably damage the employer-employee relationship, the employer is entitled to terminate their employment immediately. In such cases, the employee will be required to leave the workplace immediately, and the employer is not obligated to provide notice or payment in lieu of notice.
However, it is important to note that the employer must also follow a fair procedure. The employer should be able to show that the employee’s behaviour was severe enough to justify immediate dismissal, and that the decision to dismiss was fair and reasonable.
