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Have you been accused of misconduct?

Conduct is a potentially fair reason for dismissal. Alex Pearce, employment law specialist looks at what you need to do if you are facing disciplinary proceedings for misconduct.

If an employer has accused you of misconduct, you should get independent legal advice to ensure your employment rights are protected. 

Misconduct is unacceptable or improper behaviour. Cases of minor misconduct, such as lateness, are usually dealt with informally. Where that does not work or the matter is more serious, your employer will normally take formal action. Gross misconduct is the most serious type of conduct and includes theft, fraud, fighting, drunkenness, harassment, serious negligence and serious breach of health and safety rules. It can result in the termination of your employment without notice.


Relevant documents

Your employer has to give you details of its disciplinary rules and procedure for disciplinary decisions and appeals. This may be set out in your contract of employment or the staff handbook and you should ensure that you have a copy. Your employer should follow its own procedure when dealing with any allegation of misconduct. You and your employer should also follow the Acas Code of Practice on Disciplinary and Grievance Procedures, which is available on the Acas website (www.acas.org.uk). If either of you unreasonably fails to follow the code, and you make a claim, the employment tribunal can reduce or increase any compensation you are awarded by up to 25 per cent, depending on who was at fault.


What to do if you are suspended

Your employer may decide it is appropriate to suspend you while it carries out an investigation. If you are suspended, you should continue to receive full pay and the period of suspension should be as short as possible. If you are suspended, you should not attend work or contact any of your colleagues, clients or customers. If you need to get in touch with a colleague or obtain documents from your workplace to help you prepare for a disciplinary hearing, you should contact your employer.


The procedure your employer should follow

It is important for your employer to undertake a reasonable investigation before starting formal disciplinary action. It should establish the facts surrounding the allegations, which may involve interviewing and taking statements from you and other individuals and reviewing relevant documents and records. If your employer decides you have a case to answer, it should invite you to a disciplinary hearing, setting out details of the date, time and place of the hearing and giving you enough time to prepare. The letter should include details of the allegations against you, and your employer should give you copies of the documents it intends to rely on. The letter should also tell you about the possible outcomes.

The disciplinary hearing should be conducted by a senior manager, and a human resources manager may also attend to advise on procedure. Your employer will go through the evidence that came out of the investigation, give you an opportunity to respond and present your version of events, and establish whether any further investigations need to be carried out before a decision can be reached. You are allowed to call witnesses to give evidence on your behalf. If your employer calls witnesses, you are entitled to question them.

Following the hearing, your employer will consider whether the allegations have been upheld and, if so, the appropriate action. They will write to inform you of the outcome and, if you disagree, you will have the right to appeal. Any appeal should be dealt with by a more senior manager.


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