Handling Misconduct Lawfully: A Practical Guide for Employers

Managing misconduct can be challenging for any organisation - and mistakes in the process can lead to unfair dismissal claims, reputational damage and disruption across the workforce. With significant employment law reforms on the way, employers must ensure their disciplinary procedures are fair, consistent and legally robust.

This guide outlines the basics every employer needs to know to stay compliant as we move into 2026.

Why a fair process matters 

To dismiss fairly for misconduct, employers must demonstrate both:

• That the employee’s conduct is serious enough to be a potentially fair reason for dismissal, and
• A fair and reasonable procedure aligned with the ACAS Code of Practice.

Failure to follow the ACAS Code can increase tribunal awards by up to 25%, making procedural fairness just as important as the underlying behaviour.

Key Legal changes for employers 

1. Unfair Dismissal Rights –  Protection from 6 months

The Employment Rights Act 2025 introduces unfair dismissal rights after 6 months of employment, replacing the current two‑year qualifying period. Employers should prepare now by tightening processes in anticipation of this change.

2. Expanded Anti‑Harassment duties

The Worker Protection (Amendment of the Equality Act) Act 2023 imposes a duty on employers to take all reasonable steps to prevent workplace sexual harassment. This includes staff training, policy reviews, and proactive risk assessments.

3. Flexible Working from Day One

Employees can now request flexible working as soon as they start employment. This shift reinforces the need for transparent, up‑to‑date policies.

5 Basic Steps for a compliance process: 

1. Conduct a prompt, thorough investigation

Gather evidence early — including witness accounts, documents, and any relevant digital records.

2. Set out the allegations in writing 

Write to the employee clearly:

• Explaining the allegations
• Providing supporting evidence
• Inviting them to a disciplinary hearing
• Confirming their right to be accompanied

3. Hold a fair, impartial hearing

Present the case, allow the employee to respond, and ensure the decision‑maker remains unbiased.

4. Confirm decision in writing

Base the decision solely on evidence and ensure it is within the range of reasonable responses.  Provide the outcome, reasoning, and confirm the right of appeal in a further letter to the employee. 

5. Keep records

Accurate documentation is essential should a tribunal claim arise.

The Legal Framework

Your disciplinary and misconduct processes should align with:

• Employment Rights Act 1996
• Equality Act 2010
• Data Protection Act 2018
• ACAS Code of Practice
• And shortly the Employment Rights Act 2025

Employers must also demonstrate a safe working environment and show they have taken steps to prevent harassment — including training managers and setting clear behavioural expectations.

Finally, this is our list of the top tips for managing workplace misconduct

1. Apply procedures consistently across all levels of staff
2. Maintain confidentiality throughout
3. Avoid prejudgment — act only on verified evidence
4. Review and update disciplinary and grievance policies regularly
5. Train managers on fair process and recent legal developments
6. Keep comprehensive records at every stage
7. Take account of any circumstances relevant to the specific employee. 

Finally, we know that handling these issues is stressful and therefore can help you with scripts, checklists and draft letters throughout – please contact us to find out more.

Disclaimer: This summary is for general awareness and insight, not legal or professional advice and readers should seek professional advice for their situation.