Employee Misconduct: What Should an Employer Do?

One of the biggest mistakes employers make is deciding the punishment before properly establishing the facts. Jumping straight to disciplinary hearings or dismissal without an unbiased fact-finding process is the fastest way to lose an Employment Tribunal claim.

Nectar HR helps employers investigate misconduct allegations objectively and manage formal disciplinary processes fairly, defensibly, and practically.

What counts as employee misconduct?

Under UK employment law, misconduct is inappropriate behaviour, negligence, or an explicit breach of workplace rules and contractual terms.

Common examples include:

• Unauthorised absence or persistent lateness
• Failure to follow reasonable and lawful management instructions
• Inappropriate, aggressive, or disrespectful behaviour towards colleagues
• Breaches of company policies, confidentiality, or data protection
• Misuse of company systems, IT equipment, or company property
• Health and safety breaches or negligence
• Inappropriate use of personal or business social media
• Dishonesty or falsifying business records

Depending on the specific circumstances and severity, more serious allegations could potentially amount to gross misconduct. Your company handbook and disciplinary policies should clearly provide illustrative examples relevant to your organisation.

What is gross misconduct?

Gross misconduct is conduct sufficiently serious that it destroys the mutual relationship of trust and confidence, potentially justifying dismissal without notice or payment in lieu of notice (summary dismissal).

“Simply labelling an act as ‘gross misconduct’ in your policy does not mean summary dismissal can automatically follow. An employer must still establish the facts, investigate appropriately, and follow a fair ACAS procedure.”

Should I suspend the employee?

Not automatically. Suspension should never be a knee-jerk reaction whenever an allegation is raised.

Under the ACAS Code of Practice, suspension is not a disciplinary sanction—it is an administrative safeguard on full pay. Before suspending an employee, carefully consider whether it is strictly necessary:

• Could the employee tamper with evidence or access sensitive systems?
• Could witnesses or junior colleagues be influenced or intimidated?
• Is there a genuine risk to employees, customers, or business operations?
• Would allowing them to remain in the workplace create another serious operational risk?
• Could temporary alternative duties, remote working, or supervision manage the risk instead?

If suspension is necessary, it must be kept under regular review and kept as brief as possible while the investigation proceeds.

Do I need to investigate?

In almost every case, yes. The core purpose of a workplace investigation is to establish the facts sufficiently to decide whether there is a formal disciplinary case to answer.

Depending on the allegation, a compliant investigation involves:

• Speaking to the employee to understand their account
• Interviewing relevant witnesses and obtaining signed witness statements
• Reviewing emails, Slack/Teams chats, system audit logs, and digital correspondence
• Checking CCTV footage where lawfully and proportionately available
• Reviewing physical documents, operational reports, or receipts
• Examining relevant contractual terms, policies, and procedural records

The investigation should always be proportionate to the issue. A minor operational matter may require a straightforward fact-finding exercise. A serious fraud or harassment allegation could require an extensive, formal investigation.

Can the investigator also chair the disciplinary hearing?

In smaller organisations with limited management tiers, having the same individual investigate and chair the subsequent hearing may sometimes be unavoidable.

However, where reasonably practicable, separating the investigation from the disciplinary decision provides vital procedural independence. If the person investigating also makes the final dismissal decision, an Employment Tribunal may question whether the process was biased or predetermined. For complex, contentious, or sensitive allegations, appointing an external, independent investigator is often the safest route.

What happens after the investigation?

Once the investigation report is completed, the employer must evaluate the findings:

1. No Case to Answer: If the evidence does not substantiate the allegations, the matter ends immediately, and the employee is notified in writing.
2. Case to Answer: The employee must be formally invited in writing to a disciplinary hearing. The invite letter must detail the precise allegations, provide copies of all evidence and witness statements, inform them of their statutory right to be accompanied, and explain the potential outcomes (including dismissal where applicable).

Need help with employee misconduct?

Nectar HR supports UK employers through every stage of the conduct procedure—from initial fact-finding and evidence reviews to formal letters, disciplinary hearings, and lawful dismissals where appropriate.

We ensure your procedures comply strictly with the ACAS Code of Practice, protecting your organisation from unnecessary legal exposure while delivering a swift, practical resolution.