Everyone
Misconduct
What misconduct is, how to identify serious misconduct, behaviour outside of work, and what happens when an employee is suspected of misconduct.
What is misconduct?
Misconduct is when an employee does something wrong through what they do, do not do, or how they behave. It may justify disciplinary action being taken by their employer.
Misconduct can be at 2 different levels: misconduct and serious misconduct.
Examples of potential misconduct include:
- using inappropriate language
- internet misuse
- spending too much time on social media during work hours
- not following reasonable and lawful instructions
- minor breaches of the employment agreement, like dressing inappropriately at work
- repeated lateness.
Examples of potential serious misconduct include:
- violent behaviour
- being charged (or similar) with a civil or criminal offence
- major breaches of the employment agreement
- breaches of a policy, for example, a workplace or professional body code of conduct
- bullying or harassing another employee
- sexual, racial or other harassment
- theft or fraud
- behaviour that causes danger to the employee or others
- acting badly outside of the workplace while identifiable as an employee
- drunk or disorderly behaviour
- using illegal drugs at work
- dishonesty.
These examples may not be considered serious misconduct by an employer in all situations, but they may still amount to misconduct.
Employee behaviour away from work
In some circumstances, an employee’s behaviour outside of work, including on social media, can be considered misconduct – for example, if an employee hurts someone, the media reports it, and this damages the employer’s reputation.
Social media activity
Employers should have a social media policy which clearly sets out what is considered unacceptable behaviour, for example:
- posts that criticise the employer, manager or colleagues
- activity on social media that affects relationships in the workplace, for example, bullying or harassing other employees
- activity on social media sites that is inconsistent with the workplace’s values
- sharing commercially sensitive information
- posts that show that an employee was not doing what they said they were doing, for example, if the employee said they were sick and they were seen doing a recreational activity.
Identifying serious misconduct
Misconduct is generally considered serious if the employee’s behaviour has:
- undermined or destroyed their employer’s trust in them, and
- impacted the employee’s ability to do their job.
For example, if a security guard is physically violent towards someone, this might cast doubt on their ability to safely provide security.
Serious misconduct usually means the employee did something wrong on purpose – however, sometimes being extremely careless can also count as serious misconduct. Whether an employee’s behaviour is considered misconduct or serious misconduct will depend on the facts, including the employee’s explanation of what happened.
Bringing the employer into disrepute
Employers may also consider an employee’s behaviour as serious misconduct if it could reasonably be seen to damage the business’s reputation. Behaviour that damages an employer’s reputation can happen both at work and outside of work.
The employer only has to prove that the business could have been harmed – not that it actually was – for the employee’s actions to be considered serious misconduct.
John, 18, works for a supermarket. After work one evening, he and some of his workmates pop into the pub across the road for a drink. They get into an argument with another patron, which ends up in a fight between John and the other patron.
The patron is a truck driver for the food distribution company that supplies the supermarket John works for, and he easily identifies John and his colleagues as supermarket employees because they are wearing their supermarket uniforms.
He complains to the supermarket and, after an investigation, John is instantly dismissed for bringing the supermarket into disrepute, and his colleagues are reprimanded for their part in the incident.
John raises a personal grievance with his employer, claiming he was dismissed unfairly. He argues that what he did in his personal time was his business, not his employer’s.
The matter eventually goes to the Employment Court, which finds that John’s actions had an adverse impact on his employer’s reputation and business because he was identified as an employee of the supermarket, and that his behaviour seriously breached the trust and confidence in the employment relationship.
The Court confirms John’s dismissal.
Employment agreements and serious misconduct
Some employment agreements or workplace policies will list examples of serious misconduct. However, if an employee behaves in a way that:
- is listed in the agreement or policy, it is not necessarily serious misconduct
- is not listed in the agreement or policy, it can still be serious misconduct.
Some organisations may be sensitive to public opinion and their business interests more likely to be impacted by employee misconduct. Employers should make sure employees know the standards that are expected of them. For example, public servants and more senior employees may be held to a higher standard.
Employers should consider putting a clause in their employment agreements to make it clear that employees could be dismissed if their conduct outside work brings the employer into disrepute, or for other specified reasons.
If an employee is suspected of misconduct
Talk to the employee first
If an employer thinks an employee may be guilty of misconduct, they must raise the issue with the employee first and not make any decisions before the employee has had a fair opportunity to tell their side of the story.
If it's a minor issue, this could be an informal conversation to let the employee know that if it happens again, they will begin a formal process. If it's more serious, the employer may need to tell the employee that there will be an investigation and that they will meet with them after this has been done. Serious or repeated misconduct might lead to dismissal.
Either way, the employer should let the employee know what's happening in writing.
Carry out investigation
Employers must carry out a fair investigation before deciding whether to take disciplinary action.
Decide what action to take
Once an investigation has been completed, the employer must decide what steps to take to resolve the issue. No matter what they decide, they must follow a fair disciplinary process. The employer’s response to misconduct must be appropriate and reasonable.
If an employee is concerned that their employer has not followed a fair process or did not have a good reason, see our information about resolving problems.
Malicious complaints
If the employer finds that the misconduct allegations were untrue, they can investigate whether the complaint was brought maliciously (‘maliciously’ means it was done on purpose to upset or harm the employee). This would generally only happen if the investigation found that the person who made the complaint had lied.
Warnings
It’s common for employers to issue warnings for misconduct.
However, if the misconduct is serious or repeated, a final warning may be issued, which says the employee will be dismissed if the same behaviour happens again.
Repeated misconduct is multiple instances of misconduct that on their own would not be considered serious, for example, minor breaches of the employment agreement.
There’s no set number of warnings that need to be issued before an employee can be dismissed. As always, the employer’s response must be fair and reasonable.
Summary dismissal
‘Summary dismissal’ (sometimes known as ‘instant dismissal’) is when an employee is dismissed without notice. This means they are not given the opportunity to work out their notice period and are not paid out for the notice period. An employee may be summarily dismissed if, after a fair investigation and disciplinary process, they are found guilty of serious misconduct.
An example of when this could happen is if the employee assaulted a colleague or customer. In this situation, the employee may be suspended while the employer investigates, and if the employee is dismissed, they will not work or be paid for any part of their notice period.
It is not necessary to have a specific clause in the employment agreement to dismiss someone – without notice for serious misconduct. However, having a clause makes the decision more reasonable, provided the employer has followed a fair process.