In employment law conduct issues and performance issue may both be present in relation to your issues with a particular employee and you can instigate a disciplinary procedure that covers both. Simple misconduct could include such matters as lateness, using the phone or internet for personal use or swearing. Issues such as poor timekeeping can be both performance and misconduct in employment law. When using a disciplinary procedure in relation to misconduct, you should take the same approach as you would with performance; give an early warning and set a timescale in which to improve. You should allow the employee to put forward any mitigating circumstances - for example, is there a medical problem, are there child care or dependent problems? If the answer is yes, you should consider whether to agree a plan to work with them rather than applying a disciplinary sanction. The most normal sanction for misconduct is a written warning and you need to consider how long that warning will lie in the file.
Gross misconduct allows you to summarily dismiss an employee - this means you can dismiss them instantly without notice. Most employers now state in their employment handbooks what will constitute gross misconduct, as this is one of the factors the Employment Tribunal takes into account in considering whether a dismissal for gross misconduct is fair. Example of gross misconduct could include alcohol abuse, drug taking, theft, discrimination or harassment, false timekeeping, serious breach of confidence, computer abuse (pornography), accepting business gifts/bribes, to name but a few. If you are considering dismissing an employee for gross misconduct you need to carry out a proper investigation, be sure that the conduct complained of is actually gross misconduct and check how you have treated other employees for the same type of behaviour. The employee is allowed to put forward mitigating circumstances and you should consider if there are any alternative to dismissal.
If you have an employee who has previously had a warning for misconduct that has expired, you are not allowed to consider that warning if they again commit the misconduct. However, you are allowed to consider the fact that this is the second time they have committed the misconduct.
You may also have a concern about misconduct that occurs when your employee is off duty. This can be a difficult area. The post office workers who were dismissed as a result of allegations of World Cup violence were held to be unfairly dismissed, as it would not affect the business of the Post Office. The off duty behaviour must be relevant to how the business would be perceived.
Finally, it is possible that misconduct pre-dismissal which is only discovered after the employee is dismissed can be taken into account in determining an award in any subsequent employment law claim. However, it cannot be taken into account once they have been actually dismissed. It is therefore vital to carry out as thorough investigation as possible whilst the employee is still employed in order to reduce any possible unfair dismissal claim and defend any wrongful dismissal claim.