What is professional misconduct?

As an employer or HR professional, your job includes understanding minor misconduct versus gross misconduct

First published on Thursday, Jun 04, 2020

Last updated on Friday, Feb 04, 2022

There is a common sense approach to this. For example, if someone is frequently arriving twenty minutes late in the morning then this would be considered a minor issue that is likely to be resolved informally; however, if they deliberately stole an item from another member of staff then this would be classed as gross misconduct and may require formal disciplinary action.

In general terms, professional misconduct is unethical or unprofessional behaviour that falls short of the ethical or professional standards, guides or codes of conduct, accepted by a particular profession.

What might be considered minor misconduct?

The list of things that could be classed as minor misconduct is endless; however, as an HR representative it is important to consider the following examples:

  • Persistent lateness
  • Not completing a piece of work on time
  • Not following a manager's instruction
  • Doing a piece of work incorrectly
  • Not managing your attendance correctly
  • Not following procedures properly

What is gross professional misconduct?

Gross misconduct is an employee's behaviour, which is serious enough to potentially destroys the relationship between an employer and employee. The conduct must be deliberate or amount to gross negligence, and entitles an employer to dismiss the employee with immediate effect, without any notice.

Often more severe than minor issues, gross misconduct can include:

  • Theft or fraud
  • Physical violence or bullying
  • Deliberate and serious damage to property
  • Serious misuse of an organisation’s property or name
  • Deliberately accessing internet sites containing pornographic or offensive material
  • Serious insubordination
  • Discrimination or harassment
  • Bringing the organisation into serious disrepute
  • Serious incapability at work brought on by alcohol or illegal drugs
  • Causing loss, damage or injury through serious negligence
  • A serious breach of health and safety rules and
  • A serious breach of confidence

What to do in the case of both minor and gross misconduct?

Whether you believe it is minor or gross professional misconduct there must be clear steps in place so that an HR representative can address issues when they arise.

If you do not already have one, it is important to develop a robust disciplinary policy and procedure. This should outline exactly what to do in the cases of both minor and gross misconduct. It should also state how an HR representative can have an informal discussion with someone if an incident does not warrant further investigation.

Incidents of minor misconduct

As soon as the minor incident has been brought to attention, it is the duty of the manager and HR representative to carry out a fact-finding investigation.

Following the fact-finding investigation, the employer will be in a position to decide whether or not to progress to a formal disciplinary meeting. If their belief is that there is a case to answer, then the only way to issue a formal warning to an employee is via a disciplinary hearing.

From experience, the usual outcome if the allegation is found to be true is that a verbal warning or written warning is issued, and will remain on the employee’s personal file for a minimum of six months.

It is good advice to also issue as part of this an improvement notice, specifically stating what the improvement should be. If you do not stipulate the improvement, if there is another similar incident it just makes the HR representative’s job a little bit harder.

What about dealing with gross professional misconduct?

One of the first questions employers ask when dealing with allegations of gross misconduct is whether they should suspend the person accused. The answer is simple: if the person poses a risk to the business, or they may be able to influence potential witnesses, then the employer is well within their right to suspend them; however, if there is no risk to the business, then they can continue in the role, often subject to a risk assessment.

It’s also important to note that suspension should not be seen as a sanction. The purpose of the suspension is to remove any potential obstacle from the business which may prove a stumbling block whilst the investigation is being carried out.

If there is evidence found to support the allegation, the next step is to invite the individual to a disciplinary hearing.

Sanctions for gross misconduct

A notable difference between minor and gross professional misconduct is the respective level of sanctions that can be applied in each case. Be aware that gross misconduct can often lead to a final written warning, demotion or ultimately dismissal dependent on the incident.

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