Unfair dismissal: misconduct

by Practical Law Employment

A practice note explaining the key legal principles for employers considering the dismissal of an employee for misconduct. This practice note outlines how misconduct can be a potentially fair reason for dismissal under the Employment Rights Act 1996 (ERA 1996) and explains the crucial tests an employment tribunal will apply to determine fairness. It examines the requirements for substantive and procedural fairness, including the established Burchell test which focuses on the need for the employer to have a genuine belief in the employee's guilt, reasonable grounds for that belief and to undertake a reasonable investigation. This note also explores the application of the "range of reasonable responses" test to both the investigation and the decision to dismiss. Key practical considerations are discussed, such as the role of the Acas Code of Practice on Disciplinary and Grievance Procedures and any internal disciplinary rules, the distinction between misconduct and gross misconduct, and when an employer may rely on previous disciplinary warnings. The note discusses when dismissal will be reasonable as a sanction and looks at factors such as any alternatives to dismissal, the importance of consistent treatment between employees and how zero-tolerance policies may impact on the fairness of a misconduct dismissal. For a discussion of dismissal for various different forms of misconduct, see Practice note, Unfair dismissal: misconduct: particular types of misconduct.