Conduct

A conduct dismissal is based on something the employee has done or failed to do. It is more accurately described as misconduct dismissal. Dismissals for a single act of misconduct are usually regarded as fair only in very serious cases.

Dismissing an employee for refusing to obey a reasonable instruction can be fair (Petrofac Offshore Management Limited v Wilson UKEATS/0013/11).

In a case of misconduct, the employer must be able to demonstrate a genuine belief that the employee was guilty of the misconduct, and that its belief was based on reasonable grounds after a reasonable investigation (British Home Stores Ltd v Burchell [1978] IRLR 379).

Depending on the size of the organisation, if the same person acts as the investigating, disciplining and dismissing officer, the tribunal is likely to find that the investigation is unreasonable. In practice, using the same person to conduct both functions may well be unavoidable in the smallest organisations.

Whether dismissal is a reasonable outcome will depend on the surrounding circumstances, including the employee’s individual circumstances and the seriousness of the misconduct.

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

Any disciplinary rules must be clear and well known. The Acas Code suggests special attention should be paid to ensuring that young employees new to the workplace, and those whose first language is not English, understand what is expected.

Rules should be applied consistently, although this does not necessarily mean the outcome will always be the same. Because individual circumstances, such as the employee’s record, will nearly always be different, it will often be judged fair for an employer to impose different penalties for the same offence: