28th October 2026
How Should An Employer Respond To An Allegation Of Misconduct?
Misconduct in the workplace is, unfortunately, one of the most common workplace issues employers face. Misconduct can range from a written warning all the way to being a fair reason for dismissal. When an employee commits an act of misconduct, individuals are usually quick to look at what this might mean for the employee. However, employers should be equally concerned about the risks to their Company, should the allegation be dealt with incorrectly.
Changes To Legislation
At present, for the first two years of employment, an employer can give a warning to an employee or even dismiss an employee without the requirement to follow any formal process. However, from 1 January 2027, employees under the Employment Rights Act will have the right to bring a claim for unfair dismissal after just six months, instead of the current two years. Therefore, once an employee has six months’ service, if the employee in question commits any act of misconduct, the employer will be required to follow a fair and reasonable process, or they may risk a claim for unfair dismissal.
So, what process should the employer be following to mitigate the risk of an unfair dismissal claim when dealing with misconduct?
The Disciplinary Process
Stage 1) The Investigation
During this stage, the employer should try to gather as much evidence surrounding the alleged misconduct as possible. A key part of the process will involve holding investigation meetings with all those involved, including any witnesses and the individual who the allegation is against. All investigation meetings should include an individual taking verbatim notes, in the event any comments made need to be later relied on.
Once all relevant information has been gathered at that point the appointed investigator should collate all evidence gathered and put together an investigation report. Once completed, both the evidence and the report should be handed across to an impartial senior employee who has not yet been involved in any of the process.
Stage 2) The Hearing
At this stage, an impartial, senior employee will act as the decision maker. They will review the evidence and the investigation report and, following this, will decide if there is a potential act of misconduct.
If the decision maker decides to proceed with the hearing, a letter will be sent to the employee who the allegations are against, explaining that they are required to attend a disciplinary hearing and clearly setting out the allegations. The letter will also include all evidence gathered against the employee in question, so the employee is able to put together a full defence. The employee will need to be given sufficient time to prepare this defence prior to the hearing.
Once the hearing has concluded, the decision maker will need to take time to consider the defence to the allegations put forward by the employee before sending a formal letter, detailing the outcome of the process. When coming to a decision, employers should be cautious of relying on historic warnings, as if a warning is relied upon and a formal process was not followed when giving that warning, this may render any decision made unfair.
Stage 3) The Appeal
The employee should always be given the opportunity to appeal the outcome. It should be noted that the appeal is not a rehearing of the allegations, but instead an opportunity for the employee to highlight a procedural flaw in the process or that the outcome is not coherent with the evidence.
In the event the employee does appeal, this should always be heard by a completely impartial individual who has no prior involvement. Further to this, the individual should have knowledge of how the process should be carried out, so they can identify any procedural flaws.
Final Thoughts
This process should be followed in a fair and impartial manner, and in a reasonable time frame, when the Company receives an allegation of misconduct. Due to the change in employment rights coming into effect from 1 January 2027, there is a high chance that these processes will be required more frequently than they are currently. Therefore, employers should ensure that they have a clear disciplinary policy which employees can easily access. Whilst this process may seem long for what may in practice only be a minor level of misconduct, this process will take significantly less time than an employment tribunal claim that may come as a result of not following it.
