Managing Employee Conduct in the Workplace

It’s essential that employees understand the expectations of them to maintain certain standards of behaviour. This is crucial for the external reputation of a company and how it presents itself to its customers. But also, employee misconduct can cause significant issues in productivity and staff morale if left unchecked.

Misonduct is a potentially fair reason for dismissing an employee. That said, employees with two years or more of continuous service gain the right not to be unfairly dismissed by their employer, although this could change under the new Labour Government. Therefore, a clear disciplinary procedure must be followed before any final decision is made.

The Acas Code of Practice on Disciplinary and Grievance Procedures, a statutory code, provides guidance to employers on how to handle a disciplinary procedure in the workplace. For immediate support get in touch with one of our experts on 0808 501 6651.

Forms of misconduct

Levels of misconduct start at unsatisfactory or minor misconduct. This includes the following:

• poor performance of a task
• poor timekeeping
• poor standards of dress

Usually, situations like these can be dealt with informally. Have a discussion with the employee to tell them their behaviour is not acceptable. Reinforce that you will deal with them more seriously if it continues. That said, you can choose to begin the formal disciplinary process here if you feel it’s necessary.

If an employee continues to commit an act of minor misconduct, it can become a more serious form of misconduct. This is serious or major misconduct. This doesn’t have to be multiple instances of misconduct—can also be more specific isolated issues. These include:

• failure to carry out reasonable management instructions
• unauthorised leave of absence
• neglect of duty

Serious misconduct usually results in the start of a formal disciplinary procedure.

Lastly, gross misconduct. This misconduct is so serious it damages the trust and confidence of the employment relationship. What amounts to gross misconduct differs in some companies. So, be sure to outline what it means in your organisation. Generally, gross misconduct includes:

• Theft
• Unlawful discriminatory behaviour
• Incapacity at work due to the use of intoxicants or drugs
• Providing confidential company information to competitors or unauthorised bodies.

Gross misconduct can result in a dismissal for a first offence. However, a proper disciplinary procedure should still be followed.

Disciplinary procedure

If an allegation of employee misconduct is made, you must conduct a thorough, fair and impartial investigation. You must do this to promptly establish if there is a case to answer before considering further disciplinary action.

A thorough investigation will involve gathering all relevant evidence. You must also conduct fact-finding interviews with witnesses and the employee. Once completed, decide if the complaint can be resolved informally. If not, you should proceed with your disciplinary procedure. Employees have a statutory right to be accompanied to a disciplinary meeting. They can be a fellow worker, trade union representative, or an official employed by a trade union.

At the meeting, you should explain the disciplinary allegations in full. Once that is done go through the evidence with the employee and allow them to respond to each point. The employee should be given sufficient time to set out their case, ask questions, and present evidence in their favour. They should also be presented with the opportunity to provide any mitigating factors that they feel could help their case. Disciplinary procedures should include the right of appeal.

What does employee insubordination mean?

In business terms, it’s when a staff member actively disobeys the instructions of a superior.

This definition of subordination is, however, somewhat vague. For example, what if an employee refuses to obey a request, rather than an instruction? What if your employee frequently displays insolent behaviour? Good line managers understand when that becomes insubordination.

Some cases are straightforward, but others are difficult to determine. So, when considering insubordination, we need to look into specific examples of behaviour.

In particular, we should determine what behaviour is insubordinate and what classifies as misconduct.

What is insubordination at work?

In order to deal with insubordination as an employer you must first be able to recognise insubordinate actions. Serious insubordination examples at work include:

• Openly mocking the business or management decisions.
• Actively ignoring orders from a superior and line manager or refusing to complete tasks.
• Showing disrespect to management with rude, aggressive, or threatening behaviour.
• Expressing dissatisfaction through non-verbal means.

The difficulty of spotting insubordination at work in the UK is knowing the difference between free dialogue and insolent behaviour. If an employee challenges your ideas or offers a different opinion, this is not defiance.

If, however, your employee is consistently challenging you and is doing so in a rude or mocking way, you could consider that insubordination.

What to do about insubordination at work

Dealing with stubborn or defiant employees can mean pursuing a disciplinary procedure.

However, you can try to handle the issue informally first. Having difficult conversations is part of managing people, but that doesn’t mean it’s easy. Here’s how to approach it:

• Stay professional at all times, and if staff are rude or loud don't be tempted to mirror their actions. Always address the employee politely.
• Clearly outline that their behaviour is unacceptable. Tell them you’re speaking to them because you believe they’re being insubordinate. Outline the disciplinary actions and consequences of such behaviour if they continue acting this way.
• Even if you’re frustrated, the employee may have a genuine grievance you need to address so you should listen to them.
• Refer to your policies. You should have clear guidelines on conduct in your handbook. Remind the employee of these and your intention to act on them if their behaviour continues.

Sometimes employee behaviour crosses the line and you may have to consider dismissal. Let’s take a step back and define what is considered insubordination in the workplace and what is gross misconduct.

What counts as gross insubordination?

Some acts of disrespect may not constitute serious insubordination. In these cases, it’s important to act early to stop the issue escalating.

However, some rudeness or aggression may immediately cross the line. Then you may need to go straight to a disciplinary. When this happens, it’s important you know exactly where that line is.

To do this we need to ask the question, “What is serious insubordination?” Unfortunately, there’s no clear answer to this. The best way for you to answer this question is to use your employee handbook. Outline what you consider serious insubordination, including examples, in your handbook.

List threatening or aggressive behaviours that aren’t acceptable. This way, you can refer back to the handbook when dealing with employee insubordination.

Who should deal with insubordination in my business?

Employee relationships are key and day to day employee engagement can go some way to discouraging insubordinate conduct. Insubordination can be dealt with by many internal stakeholders including:

• Team leaders
• Management roles
• Senior management

Good management of team members is essential. Anyone in a leadership role in your business has a duty of care to manage staff effectively.

Insubordination and gross misconduct

There’s no strict legal definition of gross misconduct or formal guidelines on what constitutes gross misconduct in the UK. But the government defines gross misconduct as:

“Theft, physical violence, gross negligence, or serious insubordination.”

That means you can consider “serious insubordination” as grounds for dismissal for gross misconduct. Again, you should set out what you consider this to be within your documentation. If necessary, you may suspend the employee while carrying out an investigation.

Where the case is extremely severe, it may be necessary to summarily dismiss the employee.

However, you may only do this if their contract says so. Make sure you check for this clause before dismissing them to avoid a claim of unfair dismissal.

If an employer is to dismiss the employee, they must ensure they do so with a written warning and provide notice.

Dismissal without notice will result in a wrongful dismissal claim at an employment tribunal.

HR Considerations

Take steps to ensure all employees are aware of the expectations placed upon them whilst they work for the company. This can be specified in the contract of employment. You can also include this within the employee handbook and discuss it as part of an induction process.

It should be made clear how seriously forms of misconduct will be taken by the company and what the consequences will be. To give some examples, companies may wish to specify what actions will be taken in response to certain actions, such:

• Claims of bullying
• Abuse of company internet
• Failure to adhere to its data protection requirements

Expert support

If you’re currently experiencing a conduct issue, speak to one of expert HR representatives today on 0808 501 6651.