Gross Misconduct, Vicarious Liability and 'Reasonable Adjustments'
Employers are sometimes faced with employee conduct which falls so far below the standard of behaviour that can reasonably be expected that the only realistic disciplinary sanction that can be applied is dismissal. It is important however that employers do not ‘pre-judge’ the issue, even where the employee’s guilt is, on the face of it, obvious. Employers should ensure that they have a robust set of disciplinary procedures and rules in place in order to ensure that they approach and deal with allegations of gross misconduct in the correct way. Ideally the employer’s disciplinary rules and procedures should set out a non-exhaustive list of the types of misconduct that will be regarded as gross misconduct. Additionally, prudent employers should also reserve the right to suspend an employee (on full pay) in cases where gross misconduct is suspected. Legally speaking, the suspension of an employee should be viewed as a ‘neutral act’; its purpose being to facilitate the investigation of the alleged gross misconduct prior to a decision being made as to whether or not there is a case to answer. Finally, the importance of carrying out a fair disciplinary procedure (which includes giving the employee an opportunity to explain their actions) prior to imposing a disciplinary sanction cannot be emphasised enough. Employers who fail to grasp the importance of dealing with suspected gross misconduct in this way run the risk of turning a potentially fair dismissal into one that is unfair.
Employers are sometimes surprised to learn that they can be held liable for the actions of their employees even where the employee in question has committed an act or omission that has not been sanctioned or approved. The legal concept of vicarious liability provides that employers can be held liable for the wrongdoings of their employees even if the employer itself has committed no wrong. In order for vicarious liability to be established, the victim needs to be able to show that there is a “sufficient connection” between the wrongdoing that is being complained of and/or the harm that has been suffered and the employment of the individual who has carried out the act. In practice a sufficient connection is likely to be established where the wrongdoing or harm is committed by an employee during working hours. However, employers also need to be aware that events that take place outside of core working hours and away from the workplace can also expose them to risk (e.g. team building events and office parties). Accordingly, employers need to ensure wherever possible that employees know what is expected of them and that measures are in place to reduce and/or lessen the risk of an incident occurring.
Employers often overlook the requirement to make reasonable adjustments when dealing with disabled employees. The Equality Act places all UK based employers under a positive duty to make reasonable adjustments in circumstances where an individual’s disability has a severe and enduring impact upon their ability to carry out their role. Employers who fail to engage with this obligation will be exposed to a range of potential employment law claims including claims for disability discrimination (where the potential compensation that the employee can receive is uncapped). It’s important for this reason that employers investigate whether it is possible for adjustments to made in order to compensate and/or remove the disadvantages that may be experienced by a disabled employee or job applicant. Naturally, the question of what does or does not constitute a reasonable adjustment will often arise. Employers need to understand that what constitutes a reasonable adjustment in one case will not necessarily constitute a reasonable adjustment in another and that it will often be necessary to take external advice (e.g. from a medical expert or occupational health professional) before deciding whether or not a particular adjustment should be considered and/or implemented. Also, the fact that there may be a cost associated in making a particular adjustment does not mean that the proposed adjustment is unreasonable. The courts and Employment Tribunals have made it clear that the size and resources of employers will be taken into account when making that assessment and that regardless of their own particular circumstances an employee can never be compelled to bear the cost of making a reasonable adjustment themselves.
For further help or advice, please contact Lupton Fawcett Director Brian Harrington on 01904 561433 or firstname.lastname@example.org
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.