As an employer, navigating any form of conflict in your workplace is fraught. There are many very strict guidelines that dictate the circumstances in which disciplinary action is appropriate and govern the scope of any such action. For the average employer, some instances of workplace misconduct might seem blatantly obvious and you might be tempted to take immediate action. Whilst there is some merit to this approach from an interpersonal perspective, it is rarely that simple under the law; there are many factors that must be taken into account and a failure to do so can leave you, as an employer, liable to any number of claims against you. To better understand the restriction surrounding your own actions, it is important that you first understand “what constitutes misconduct in the workplace?”. By familiarising yourself with the defining elements of workplace misconduct, you will place yourself in a better position to take appropriate and corresponding action in the event that any conflict does arise.
The potential consequences of taking improper disciplinary action against your employees are considerable. Depending on the extent and precise nature of your actions, you can find yourself facing significant penalties, as well as legal fees to mediate disputes that may consequently arise. It is imperative that, as an employer, you maintain sufficient consideration for the inherent rights of your employees and the systems surrounding workplace misconduct are ultimately aimed at safeguarding the rights of workers. Whilst this may make the system quite difficult to navigate at times, it is an important feature in the maintenance of workplace relations and, with the right approach, it will not prevent you from taking fair and just action against employees who are not conducting themselves in a manner that is suitable in your workplace.
Some important things to consider before you take steps to address misconduct
Misconduct in the workplace falls under several different categories, the broadest of which are serious and regular misconduct. Misconduct of either variety requires a unique approach and within both categories, there are several subcategories – each of which demands a slightly distinct source of action. These steps serve to maintain a cohesive and respectful workplace, whilst recognising the importance of upholding workplace rights and regulations. Generally speaking, misconduct of a regular nature can be dealt with using a basic process. This process is effective for dealing with performance-based shortcomings that are sufficient in severity to amount to misconduct. Usually, such behaviour entails disorganisation or a failure to meet the performance expectations of your workplace. To deal with this in a manner that is consistent with your legal obligation as an employer, you must first inform the employee in question of their failure to meet expectations and remind them of the expectations associated with their position. If this fails, you may wish to commence a performance management process, which is aimed at bringing the performance of your employee into line with the expectations imposed upon them. It is only after you have exhausted all avenues that you can take the matter further.
Conversely, instances of serious misconduct must be managed promptly and with the upmost attention to detail. Serious misconduct includes – amongst other things – any behaviour that compromises the safety or feeling of safety of other employees, or behaviour that amounts to criminal conduct in your workplace. Due to the severity of serious misconduct, it is paramount that you address it directly and in a manner that preserves the safety, inclusiveness and respectfulness of your workplace, whilst maintaining adequate regard for the rights of your employees. In circumstances of serious misconduct, it is very important that you are able to identify said misconduct as serious and act accordingly. To ensure that you cannot be held liable for your actions as employer, it is advisable – particularly in instances of termination – that you consult a legal professional.
What are some features of misconduct?
Misconduct varies in nature and specific instances of misconduct are likely to be considerably disparate, depending on the facts of the incident. What is important for you as an employer is that you are aware of the basic features of misconduct, so that you can identify it in your workplace and take the appropriate steps to address fairly and effectively. If you are in any doubt as to the extent of an employee’s misconduct or the appropriate action that should be taken to address it, it is paramount that you seek the advice of a legal professional.
Perhaps the most common form of workplace misconduct is performance-based. Such behaviour includes a range of different things in particular and is very rarely sufficient to warrant immediate termination. Employees who are know to engage in misconduct of this nature are usually disorganise, inept or simply unequipped to undertake the duties assigned to them by virtue of their position. Some examples of performance-based misconduct include an employee frequently arriving at work late, failing to meet deadlines or organisational targets, producing work of an unacceptable standard or failing to meet reasonable expectations of productivity.
Harassment or bullying
Harassment or bullying is likely to constitute serious misconduct and it is vital that such behaviour is addressed swiftly and efficiently. Misconduct of this nature can have serious implications on the satisfaction, productivity and ultimately, the mental health of your workplace. Examples of harassment or bullying include sexual harassment, sexist or racist behaviour, the victimisation of one person in particular and any conduct that serves to or is likely to threaten, demean or degrade or any other employee.
Irresponsible or criminal behaviour
Depending on its precise nature, irresponsible behaviour can amount to serious misconduct, although instance ought to be taken on their merit. Criminal behaviour, on the other hand, undoubtedly amounts to serious misconduct and in the event that one of your employees engages in criminal activity in the workplace, you ought to contact the police. Criminal behaviour – and some instances of irresponsible behaviour – are sufficient to justify immediate termination, although it is strongly advisable that you seek legal counsel before terminating any employee, as wrongful dismissals carry considerable financial penalties.
For more information on what constitutes misconduct in the workplace, contact Fairly today.