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How to deal with misconduct in the workplace

Handling misconduct in the workplace is an unfortunate necessity for HR departments and managers. It’s not a fun task, but is often necessary to ensure that the company’s expectations of employee conduct are clear and enforced.

Understanding what constitutes employee misconduct, having clear processes in place to deal with it, and proper reporting channels are all critical to ensuring a fair and safe workplace for all.

This article will explore the issue of employee misconduct, and provide guidance on how to deal with it effectively at your organization.

What is misconduct in the workplace?

Misconduct in the workplace refers to any behavior that goes against your code of conduct or other policies that dictate how employees should behave at work.

This might include unethical, unprofessional, or even criminal behavior that takes place within a workplace setting. Specific instances of workplace misconduct may relate to their impact on company property or infrastructure, processes and outcomes, or on the well being of other employees at the organization.

Workplace misconduct may be minor or major, and the repercussions for these actions will vary depending on the severity and impact.

Types of misconduct in the workplace

Generally speaking, there are two types of misconduct in the workplace:

  • Minor misconduct, and
  • Gross misconduct

Minor misconduct refers to issues that can likely be resolved through informal means.

These are relatively minor instances of misconduct that do not necessarily damage the workplace relationship between the employee and employer.

Gross misconduct, on the other hand, is a serious breach of the ethical or professional codes of conduct laid out at your organization.

This misconduct is often serious enough to irreparably damage the relationship, trust, and confidence between the employee and employer. In these cases, a working relationship cannot continue, and a formal disciplinary action like termination or suspension often follows.

Instances of minor and gross misconduct in the workplace will vary depending on your industry, culture, and the nature of your business. This is especially true with minor misconducts. What one company may consider misconduct, another might not view as unfavorably.

Likewise, some industries might have specific actions that constitute gross misconduct based on their impact on the company or clients. Carelessness with data leading to a security breach is one such example.

Examples of misconduct in the workplace

While no list of misconduct in the workplace will be 100% complete due to variances from company-to-company and industry-to-industry, here are some notable examples:

Examples of minor misconduct in the workplace include:

  • Frequent lateness
  • Missed deadlines
  • Failing to follow a manager’s instructions
  • Frequent errors
  • Failure to follow procedures correctly
  • Using inappropriate language
  • Wearing inappropriate clothing
  • Disrupting other employees
  • Unauthorized use of property
  • Violating health and safety procedures

In some cases, minor misconduct may creep into the realm of gross misconduct, depending on the specifics of the incident. In these cases, it will be necessary to use your judgment and internal processes to determine how severe the misconduct was, and what the disciplinary action should be.

Examples of gross misconduct in the workplace include:

  • Theft
  • Fraud
  • Physical violence
  • Bullying
  • Deliberate damage to company property
  • Serious insubordination
  • Damaging misuse of company’s property or name
  • Serious misuse of company infrastructure like computers or Internet
  • Discrimination
  • Harassment (including virtual harassment)
  • Serious issues at work caused by alcohol or illegal drugs
  • Serious or repeated breaches of health and safety rules

As you can see, gross misconduct rises to the level of causing severe damage to the company, employees, or clients in some capacity. In these cases, the incident of misconduct is typically bad enough to warrant severe disciplinary action.

We noted virtual harassment above, as this is a new element to workplace misconduct that employers need to prioritize. As workplaces continue to hire and work remotely, it can be difficult to keep track of how all employees are interacting with each other. Unfortunately, that means that virtual harassment has become a concern in some organizations.

To combat this, we recommend creating a subsection of your code of conduct that emphasizes what constitutes virtual harassment, and what the consequences are. This should be communicated to all employees via publicly available channels.

Reporting misconduct in the workplace

Identifying and reporting misconduct in the workplace is a responsibility that all employees share, regardless of seniority. The caveat to that statement is that rank-and-file employees may not feel comfortable in flagging workplace misconduct out of fear of reprisal or ostracization.

Because of that, it’s advisable to have a clear process in place for how employees can report workplace misconduct. Likewise, you should make it clear to managers and leaders what they should do with that information once it’s brought to their attention.

While your process for reporting misconduct in the workplace will likely vary, it should include these important touch points:

  1. An outlet for employees to report misconduct to their immediate supervisor
  2. If the supervisor is engaging in the misconduct, an alternative person that the employee can speak to
  3. Next steps that the manager or leader should take once misconduct has been brought to their attention. This should include instructions for:
    • Escalating the issue to human resources
    • Investigating the misconduct
    • Holding a meeting with the accused employee to get their side of the story
    • Potentially holding a disciplinary hearing
    • Implementing warnings or sanctions

As mentioned, it’s very likely that some employees will be concerned about suffering professional repercussions if they voice their concerns about workplace misconduct. Because of this, you should ensure that you provide a channel through which to anonymously share concerns.

To do so, you should set up a publicly available, anonymous communications channel that allows employees to file complaints without using their names, if desired. Ensure that you communicate that this channel exists to the organization, and explain what the process is once complaints are filed.

This is also a good time to remind employees that your code of conduct exists, if you haven’t done so in a while.

Now that we’ve outlined what misconduct in the workplace is, what it looks like, and how to provide your employees with channels to report it, let’s look at how to deal with these potential issues.

How to deal with misconduct in the workplace

Dealing with misconduct in the workplace means juggling a variety of considerations around communication, employment law, and ethical standards. It can be a complicated and emotional process, which is why it’s so critical to have a clear and objective framework in place.

Before we dive into how to deal with misconduct in the workplace, it’s worth reiterating that no two cases will be the same. Instead, this process will require you and your co-workers to use your judgment to ensure that you’re doing what’s best and fair for all individuals involved.

With that being said, let’s look at how to handle instances of misconduct in the workplace.

1. Communicate what you consider to be misconduct

This first step is absolutely critical to ensuring that the remainder of this process is fair and legal under local employment laws. You must clearly explain, in written documentation, what you expect from employees in a publicly accessible code of conduct or employment handbook.

In this document, you should:

  • Define what constitutes good, and bad, behavior at work
  • Make it clear that the list is not definitive, and that some behaviors may be deemed negative upon review
  • Make it clear what happens when an employee engages in these negative behaviors

This document is a legal requirement that will allow you to objectively weigh on an employee’s specific instance of misconduct against the agreed-upon contract. Without this baseline of conduct, you will quickly enter some legally murky waters if you attempt to terminate an employee for perceived gross misconduct.

2. Create a process to address instances of misconduct as they arise

Likewise, you should have a clearly defined process in place for what happens after an employee is accused of misconduct. This will serve as the procedural roadmap for how managers and human resources should navigate this process in the future.

This process should include instructions on:

  • What staff should do if they witness misconduct
  • What management should do if someone reports misconduct to them
  • The process by which management and HR should investigate the issue, approach the individual, and decide upon disciplinary actions

That last point is key. Depending on the issue in question, this process – and the disciplinary outcome – will vary widely. It’s helpful to have dual processes in place to deal with minor and gross misconduct in the workplace.

3. Dealing with minor vs. gross misconduct in the workplace

As you can imagine, the process to deal with gross misconduct is quite a bit more involved than minor misconduct. Because of this, you should make it clear what steps should be taken in each instance.

The process for dealing with minor misconduct typically involves:

  • The issue being brought to the attention of the manager or human resources
  • Both parties carrying out a fact-finding investigation to collect hard evidence of misconduct
  • Based on those findings, both parties can decide if a formal disciplinary meeting is needed
  • If it’s not, then an informal talk with the employee can take place
  • It it is, then a formal warning may be issued either via written document or verbally
  • This warning should remain on the employee’s file for about six months, and include a clear stipulation of what should be improved and by when

In most cases, the outcome of dealing with minor misconduct will be that the employee is made aware of the issue, and is provided coaching on how to improve their behaviour. All parties can then revisit the issue in six months time to see if it has been solved.

The process for dealing with gross misconduct typically involves:

  • The same reporting and fact finding process as above, but with the option to immediately suspend the employee if they are considered to be a risk to the business, employees, or integrity of misconduct investigation
  • A formal disciplinary hearing that presents the findings of the investigation to the employee, and gives them a chance to respond
  • Potentially severe sanctions that can be applied to the employee, if the gross misconduct is proven, including a final written warning, demotion, or termination

If the company decides upon termination as the only course of action, you should ensure that the decision constitutes “fair termination” under your local employee laws.

Typically, fair terminations must meet the following standards:

  • The employer must genuinely believe that the employee committed gross misconduct, and be able to show reasonable grounds for believing this
  • The employer must be able to demonstrate that they have carried out a thorough investigation
  • The employer must show that termination was legally justified based on the nature of the misconduct

Because of this significant legal hurdle for instances of termination, it’s critical that you take detailed notes at each stage of the process. This will ensure that you are giving all employees due process and that you have a clear history or records that support your disciplinary decision.

If in doubt, consult an employment lawyer before making any final disciplinary decisions.

4. Prevent misconduct from happening in the first place

Of course, the easiest way to deal with misconduct in the workplace is for it to not happen in the first place. Easier said than done, right? Yes and no.

Fostering a workplace and company culture where expectations are made clear, and mutual respect is promoted, is one way to minimize instances of misconduct.

To do so, you should have a clearly established code of conduct that specifically outlines what constitutes good and bad behavior. You should also make sure that all employees are made aware of this document during their onboarding process.

In addition to this, your organization should strive to create a culture that values every employee and makes it clear that harassment or unethical behavior will not be tolerated. This mandate should come from the CEO, who stands as the model for how employees should treat one another, clients, and company property.

By creating a culture where every employee feels valued and protected, you can drastically reduce instances of employee misconduct that can put a drain on employee morale and company resources.

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