Conduct dismissals

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 fair only in very serious cases.

The employer must 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 or proof.

Except in a very small organisation, if the same person acts as the investigating, disciplining and dismissing officer, the tribunal is likely to find that the investigation is unreasonable.

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

Employers must spell out clearly the 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 need to spell out rules and sanctions clearly is particularly important where conduct takes place outside work (Smith v Trafford Housing [2012] EWHC3221).

The Acas Code says 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.

The more serious the potential consequences for the individual, the higher the standard of investigation and procedural fairness expected. For example:

The Acas Guidance emphasises that investigators must keep an open mind and look not just for evidence pointing to guilt but also innocence. Allegations of dishonesty call for particularly rigorous investigation.

In Miller v William Hill Organisation Limited [2013] UKEAT 0336/12/2106, bookmakers William Hill wrongly accused one of their counter staff of dishonesty. The dismissal was unfair in part because management only viewed the segments of CCTV footage that supported their preconceived version of events, instead of watching the whole footage.

There is no rule that a “too thorough” investigation will make a dismissal unfair (City and County of Swansea v Gayle [2013] UKEAT/0501/12/RN). However, depending on the facts, a decision to carry out a much more rigorous investigation than normal could point to discrimination or anti-trade union bias.

The human right to respect for private and family life (Article 8 of the European Convention on Human Rights) is engaged when an employer conducts covert surveillance (McGowan v Scottish Water [2005] IRLR 167) at work. However, it is not normally engaged where the surveillance takes place in a public space where there is no reasonable expectation of privacy (City and County of Swansea v Gayle [2013] UKEAT/0501/12/RN). This issue crops up most frequently in the context of investigations into sick pay (see Chapter 7) and time recording.

Even if Article 8 is triggered by the use of covert surveillance, an employer will be able to justify its behaviour and avoid a breach of the Convention if it can show that its use of surveillance was a proportionate means of achieving a legitimate aim — usually fraud prevention. Behaviour is likely to be regarded as proportionate if:

• it is limited in time (for example, just one week);

• there are legitimate suspicions of grave and serious concerns;

• alternatives to surveillance have been considered; and

• staff have been warned of the possibility of covert surveillance.

For more information, see the LRD booklet: Social media, monitoring and surveillance at work — a practical guide for trade unionists.

A breach of the Information Commissioner’s Employment Practices Data Protection Code will not make a dismissal unfair. This is because the Code has the status of guidance only. Employers are not bound to follow it and tribunals are not required to take it into account (City and County of Swansea v Gayle [2013] UKEAT/0501/12/RN).

There is no general right to cross-examine witnesses in a disciplinary hearing, but in some circumstances it can be unreasonable for an employer to refuse a request. For example:

If the employer has based its case on allegations by employees who want to remain anonymous, the tribunal should consider, as part of its overall assessment of fairness, whether these sources should have been revealed. At the very least, the substance of the allegations must be put to the employee. The EAT has held, in Pudney v Network Rail Infrastructure Ltd EAT/0707/05, that it is unreasonable to dismiss an employee on the basis of material not disclosed to them or on which they do not have the opportunity to comment.

Where employees insist on anonymity, Acas says that employers should look for corroborative evidence and consider what might have motivated the employee to do the things they stand accused of.

Dismissing someone to make an example to deter others is unfair (Leeson v Makita Manufacturing Europe [2001] All ER 345).