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 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 [2011] UKEATS/0013/11/2009).

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 or proof. The more serious the possible outcome, the higher the standard or investigation required (see below: Gross Misconduct).

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.

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 should 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:

Any discipline rules must be clear and well known. 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.

Rules must be applied consistently, but this does not mean the outcome will always be the same, because each employee’s circumstances will be different.

The cases show that inconsistent treatment is likely to be particularly relevant where:

• employees have been lulled into a false sense of security by an employer’s past behaviour, leading them to believe certain behaviour is tolerated or will not result in dismissal;

• more lenient behaviour towards others, past or present, suggests that the employer is not being truthful about the reason for the dismissal;

• the circumstances of two employees are truly parallel, so that it is not reasonable to dismiss one and not the other;

• there are issues of discrimination (see Chapter 6) or trade union victimisation (see Chapter 5). Evidence of inconsistent treatment can be particularly valuable when applying for interim relief (see page 138).