Conduct dismissals



A conduct dismissal is based on something the employee has done or failed to do. Dismissals for a single act of misconduct are usually only fair in very serious cases. Whether a conduct dismissal is fair or unfair will depend, as always, on whether the decision to dismiss falls within the “band of reasonable responses” available to the employer, applying the test found in section 98(4), ERA 96.


The Acas Code of Conduct on Discipline and Grievance applies to all conduct dismissals (see page 347).


The employer must be able to demonstrate a genuine belief that the employee was guilty of the misconduct, based on reasonable grounds, after a reasonable investigation (British Home Stores Ltd v Burchell [1978] IRLR 379). This is lower than the criminal standard of proof. 


To decide whether a dismissal was fair, the tribunal looks at the facts that were known (or that should have been known) to the dismissing officer at the time of dismissal (Orr v Milton Keynes Council [2011] EWCA Civ 62), not at information that emerges afterwards (Mears Limited v Brockman [2015] UKEAT/0243/14/BA). It is important to make sure that all relevant evidence and defences are put to the dismissing officer in charge of making the decision. 


Employers must always spell out clearly any behaviour they regard as misconduct serious enough to justify dismissal. Failure to do this could make a dismissal unfair. This should be set out in the disciplinary procedure and drawn to employees’ attention, for example, through induction and training:



The Acas Code says that special attention should be paid to ensuring young employees new to the workplace and those whose first language is not English understand what is expected. 





Employers can dismiss fairly for conduct outside work, but only if it relates in some way to work, usually by damaging the employer’s reputation (CJD v Royal Bank of Scotland [2013] CSIH 86). A fair dismissal requires evidence of a genuine risk of reputational damage. The rules, and the penalties for breaking the rules, must be spelled out clearly. 



Social media has significantly increased the risk of being disciplined or dismissed for conduct outside work. Tribunals apply ordinary standards and principles of unfair dismissal law to social media-related dismissals (Game Retail Ltd v Laws [2014] UKEAT 0188/14/DA). Tribunals treat social media sites such as Facebook and Twitter as public spaces. Limiting access to a posting to a specific group of “Friends” will not make it private. More often than not, disciplinary action is triggered by the actions of disgruntled colleagues who print off postings and pass them to management. 




A dismissal related to drink or drugs can be fair. As always, the employer must have a clear policy and communicate clearly the kind of conduct that can result in dismissal and must follow its own policy. Before any dismissal, the employer should have spelled out the relevant rule, and should conduct a proper investigation. Large employers are normally expected to consult the employee on any dependency problem and to provide support.