Why Serious Misconduct Should Not Always Result In Dismissal

“Just because we could, doesn’t mean we should.” A line I’ve trotted out to many a client over the years.

Sometimes, the reverse works, too. Just because employment law says we can’t do something doesn’t necessarily mean we shouldn’t if the consequences of not doing it outweigh the risks from doing it. This is where experience comes in, and after 35 years in HR, I have a lot of it!

Inexperienced HR advisors will say ‘you can’t do that’. Experienced ones will know that you can, and you might, but there will inevitably be some risk, which you may or may not choose to mitigate. I met an employment barrister once who told me that if he was an employer and wanted to sack someone, he’d just do it, banking on the probability that the fired employee wouldn’t bother to take him to a tribunal. It’s a decisive approach, but it could prove an expensive one!

But just because an employer can fire an employee (and Labour’s reforms won’t change that) doesn’t mean they should. Some time ago I learned of an absolutely tragic case, a case where an employee was absolutely guilty of serious misconduct– he was bang to rights as it were. The business owner fired him, and in 99% of cases I would suggest this was the right course of action. But not in this one.

In this case there were clear reasons for the misconduct, a bad situation snowballed and became an avalanche, affecting every aspect of the employee’s life, resulting in him making a series of poor decisions, misconduct included.

Step 1 in making good decisions arising from a discovery of misconduct, is to try and understand not just what happened, but why it happened. An objective observer in this case (a role we often take at Primed) would have judged on the facts that there was room for compassion, but the CEO saw things very differently.

There was another, to us, obvious reason for objective vision. The employee concerned had effectively built the company, taking it from a micro-SME to a multi-million pound operation. The CEO had lived a good life for many years on the back of the employee’s hard work, with very little personal involvement in the Company’s operations. We predicted that without the employee, the Company’s future would be at risk. We also felt that the employee’s misdemeanours might have been fixed in time, provided of course he remained in his role and was reconciled with the CEO.

The CEO though refused to consider the possibility of the employee making good his misconduct, and gave no regard for potential mitigating factors he might have considered. Instead, fuelled by emotion and a burning desire to exact revenge, he effectively dismissed the employee.

This decision was to prove terminal for the business. Without the employee’s knowledge and experience, contracts started to slide. Bad decisions exacerbated problems, leading to the total failure of the business in a matter of months after the employee left. Tragically, the CEO took his own life after the company entered administration.

I have absolutely no doubt that had the employee not been sacked the business would still be going today, and I can only assume that a life would not have been lost.

Yes, the employee committed serious misconduct and yes, reconciliation with the business owner would have been a challenge. But that reconciliation should have been attempted, and perhaps I should have tried harder to force it. I will never know.

The morals of this unfortunate tale return us to where we started.

1. Sometimes employers will need to take a decision to dismiss for the good of the overall business, even if dismissal would not normally be a sanction provided for in law.
2. Sometimes the opposite is true too – a decision to dismiss in the face of serious misconduct should not always be automatic, particularly if, as in this case, serious consequences may result.

There is always another alternative, and that’s where good HR advice outweighs the legal angle. Sadly, too many employers don’t have access to good experienced HR advice and some others simply won’t listen, to their detriment in the end.

Bill Larke has been advising employers on HR matters for 35 years, and today works for a group of companies that includes myHRdept, an HR outsourcing company he founded in 2002.