Conduct dismissals


A conduct dismissal is based on something the employee has done or failed to do. It is more accurately described as a 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 of 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 was unreasonable. A dismissal can also be unfair if the final decision-maker interferes with the investigation process (Ethnic Minorities Law Centre v Deol [2015] UKEATS/0022/14/SM).


As always, whether a dismissal is fair will depend on the whole context, including the employee’s circumstances and the seriousness of the misconduct.


Employers must always 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. For example:


It is especially important to be clear about rules, and the sanctions for breaking those rules, when conduct takes place outside work (For a good example, see Smith v Trafford Housing [2012] EWHC3221, a social media case.)


The Acas Code says special attention should be paid to ensuring young employees who are 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 dismissal is unfair if the employer’s investigation is “excessive” (City and County of Swansea v Gayle [2013] UKEAT/0501/12/RN). Even so, a decision to carry out a much more rigorous investigation than normal could point to discrimination or victimisation. 


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 to investigate suspected misconduct (McGowan v Scottish Water [2005] IRLR 167). However Article 8 is not normally relevant 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). 


The right to privacy is a qualified (as opposed to an absolute) right. This means that covert surveillance can be justified, avoiding a breach of the Convention, if the employer can show that the use of surveillance was a proportionate means of achieving a legitimate aim — usually fraud prevention. The employer’s behaviour is likely to be regarded as proportionate in this context if:


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


• it is reactive, as a short-term response to legitimate suspicions of grave and serious misconduct, as opposed to being in place on a permanent basis, waiting to catch people out;


• alternatives to surveillance have been considered; and


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


On its own, 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).


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


A dismissal related to drink or drugs can be fair. As always, the employer must have a clear policy and communicate clearly to employees the kind of conduct that can result in dismissal. 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.