Reason for dismissal ― conduct

Produced by Tolley in association with Hannah Freeman at Old Square Chambers

The following Employment Tax guidance note Produced by Tolley in association with Hannah Freeman at Old Square Chambers provides comprehensive and up to date tax information covering:

  • Reason for dismissal ― conduct
  • Refusal to comply with instructions
  • Breach of discipline
  • Criminal offence
  • Misconduct related to disability
  • Fairness of dismissal
  • Where working relations have broken down

Reason for dismissal ― conduct

Conduct is a potentially fair reason for dismissal. Dismissals for misconduct are probably the most frequent category of unfair dismissal claim brought before the employment tribunal.

Dismissal for an isolated incident of misconduct will rarely be fair, although, in some circumstances, the incident will be sufficiently serious to justify dismissal for a first offence. Generally, dismissal for misconduct will only be a reasonable sanction if the employee has committed earlier acts of misconduct and been warned that further incidents may lead to dismissal. The misconduct for which an employee is dismissed need not be of the same nature as the conduct for which the warning was imposed. The courts have held that a final written warning always implies, subject only to the individual terms of a contract, that misconduct of any nature will often, and usually, result in dismissal.

Refusal to comply with instructions

An employee is under a general obligation to follow lawful instructions given by the employer. The scope of the employer’s powers and the employee’s obligations will usually be set out in a written statement of terms and conditions or other contractual documentation. However, there may also be unwritten duties arising from custom and practice.

Fair dismissal may follow from a refusal to comply with an instruction to carry out normal duties. It may also follow from a refusal to follow an instruction to carry out new duties; for example, where a contract requires an employee to work at any of the employer’s workplaces within a reasonable commuting distance of his home, a refusal to transfer from one workplace to another may justify dismissal.

In certain circumstances, a dismissal may be fair even where the instruction in question was outside the scope of the employee’s contractual obligations; for example, where the employer believed that it was entitled to give the instruction even if as a matter of fact it was not. The lawfulness of the employer’s instruction is a relevant, but

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