Where an employee commits an act of misconduct, your response is to deal with it through your disciplinary procedure.

Often employers use their disciplinary procedures to deal with issues of poor performance (capability). While the processes are similar, the focus is very different. Dismissing an employee for performance issues by using your disciplinary procedure may mean you unfairly dismiss your employee.

Acts of misconduct can vary, and you may want to know whether you have the right to dismiss for gross misconduct. This can be possible, depending on the misconduct involved, but there will be other considerations to take into account that we will discuss with you. For example, if you dismiss for gross misconduct, you may face a separate claim for wrongful dismissal (notice), which is harder to defend than unfair dismissal.  

While you don’t need to prove misconduct, you need to ensure that you have followed a fair procedure (and as a minimum the ACAS code of practice) and at the end of your procedure you must reach a reasonable conclusion. If not, the dismissal will be unfair and allow the employee to claim compensation. 

Often an employee will raise a grievance during a disciplinary process, so knowing how best to deal with such overlapping issues requires specialist employment law advice, which we are able to provide.