When an employee has been dismissed on the ground of misconduct, whether the dismissal was fair or unfair will depend on whether the employer acted reasonably in treating the misconduct as sufficient reason for dismissing the employee. When reaching its decision, the Employment Tribunal (ET) must consider whether the employer reasonably believes that serious misconduct has been committed by the employee and was the reason for the dismissal, whether the procedures followed by the employer were fair, and whether dismissal fell within the ‘range of reasonable responses’ open to the employer. Each case will be decided on its own merits and facts. Consideration will be given to whether the conduct in question, be it an action or a failure on the part of the employee to do something, is specifically mentioned in the employer’s disciplinary code of practice as amounting to gross misconduct, with the possible sanction of dismissal, and whether the employer has taken adequate steps to bring the code to the employee’s attention.

The law protects employees from sexual harassment. Harassment is unwanted conduct that has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant or of violating the complainant’s dignity. This includes behaviour by one employee towards another. The definition of harassment in the Equality Act 2010 means that employees can complain of behaviour they find offensive, even if it is not directed specifically at them and the complainant need not possess the relevant protected characteristic themselves.

Employers should ensure that all employees are aware that no form of harassment will be tolerated in the workplace and have in place robust procedures for enforcing the policy. The possible sanctions should be made clear in your disciplinary code. Failure to take action is potential evidence of non-compliance with discrimination law in any future ET claim. Where a particular act or omission is deemed gross misconduct likely to lead to dismissal, this should be clearly stated and employees made aware of the application of the code.

We can advise you on how to create and enforce an effective anti-discrimination policy.