Researcher and employment law writer at Croner-i, Opeyemi Ogundeji, explores how employers can manage conduct both in the workplace and whilst staff are working from home.
Dealing with conduct is part and parcel of managing a workforce. Whether employers own a small business or a large one, conduct issues will more than likely arise, meaning all employers who rely on staff to keep their business going need to ensure that they know how to deal with these issues.
Particularly, where unforeseen circumstances arise which may disrupt usual business practices, such as the coronavirus pandemic, it is more important than ever that employers become accustomed to dealing with these conduct issues.
Conduct issues at home and in the office
Where remote working is concerned, it is important to note that employees who are working from home should be treated the same as those who are in the office, including when it comes to matters of conduct. This means that the way in which conduct is handled with a remote worker will be similar to how it is handled with employees in the office. However, it is worth noting that it can be difficult to police misconduct among remote workers, thus making figuring out how to deal with these issues equally as challenging.
The easiest way to manage misconduct in this situation will be to put extra precautions in place to make sure there is minimal misconduct. For example, by holding regular catch-up sessions with remote employees and encouraging self-appraisals. Misconduct can range from using work equipment for personal use to overstating the amount of hours worked.
At times, there can be cases of gross misconduct — misconduct that is so serious it serves to damage the trust and confidence of the employment relationship — which can result in a dismissal for a first offence; although, a proper disciplinary procedure should be followed in all cases. Gross misconduct whilst a person is working from home can range from harassment via a messaging platform, such as Teams, to putting a client’s personal information at risk by not following company data protection rules.
When employees are working in the office, it may be easier for conduct issues or behavioural changes to be detected. Misconduct, and gross misconduct, in the office can sometimes take the same form as that which can be practised by employees at home. However, homeworking brings up types of misconduct that office working would not, like not working because they are watching their favourite show on the television. Certain misconduct issues that can be observed in the office include constant lateness and use of inappropriate language.
Levels of misconduct, either reported or observed, start at unsatisfactory or minor misconduct and can include poor performance of a task or poor timekeeping. Not all instances of misconduct should be managed with a heavy hand, keeping in mind that not all employees can successfully work from home without it impacting their mental health. It is crucial, therefore, that employers first talk to employees suspected of misconduct to gather information about why their behaviour may have changed. It may be that they require emotional support through an employee assistance programme or adjustments to their work schedules.
If an allegation of employee misconduct is made, employers must conduct a thorough, fair and impartial investigation to promptly establish if there is a case to answer before considering whether further disciplinary action is needed.
A thorough investigation will involve gathering all relevant evidence, such as any surveillance footage, alongside conducting fact-finding interviews with witnesses and the employee. Once completed, the employer should decide if the complaint can be resolved informally or if the disciplinary procedure should proceed. Employees have a statutory right to be accompanied to a disciplinary meeting by a companion who is a fellow worker, trade union representative, or an official employed by a trade union.
At the meeting, the employer should explain the disciplinary allegations, 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.
Action steps for managing conduct
The following action steps can help employers manage conduct issues both remotely and in the office.
Act quickly to establish the facts.
Carry out a thorough investigation.
Follow a fair disciplinary and/or grievance procedure.
Seek advice for legal clarity.
Decide on the appropriate consequence to the employee’s actions.
Conduct is a potentially fair reason for dismissing an employee. However, employees with two years or more of continuous service have the right not to be unfairly dismissed by their employer. This is why a clear disciplinary procedure must be followed before a final decision is made to dismiss an employee for misconduct.
In all, employees must understand the expectations on them to maintain certain standards of behaviour, eg through a policy. Not only can this be crucial for the external reputation of a company and how it presents itself to its customers or clients, but employee misconduct can also cause significant issues in overall company productivity and output if left unchecked.