Managing Bad Behaviour In the Workplace - Perspectives from a Global Employment Counsel (2023)

There’s never a dull day for an employment counsel. I’ve seen the good, the bad and the ugly in businesses big and small, local and international.The thing that fascinates me is why employees do it.

Employees behave badly in the workplace for a multitude of reasons. It may be because they have no regard for rules and regulations, they are desperate, they are operating under stress or they are carried away by a situation.The reality is that some employees do foolish things when sober and worse still, when drunk. Whether this is about lying in their CV, theft, fraud, falsifying expenses, sexual harassment, watching pornography, malingering, bullying, violence at work, disclosure of confidential information or engaging in competitive activities, employees do eventually get caught out.

Many companies have a Code of Conduct Policy regulating the standards of behaviour they expect of employees and in their dealings with customers, suppliers and fellow colleagues. Errant behaviour needs to be addressed to maintain order in the workplace, ensure compliance with your corporate culture, values and policies and to set the right precedent in your organisation. Where the behaviour is criminal, the police and regulators may also need to be involved to protect your licence to operate in regulated activities.

If you have a very bad employee and you need to terminate him or her for gross misconduct cause, here are a few things to bear in mind:

• In many countries, you will need a fair reason to terminate employees and to follow a fair process prior to any termination.
• Misconduct is often a "fair" or "valid" reason to terminate a person's employment with notice provided that you have also followed a fair disciplinary procedure typically comprising of at least 2 disciplinary warnings.Seek advice from your employment counsel.
• Gross misconduct, on the other hand, is behaviour that is so fundamental that it is equivalent to the employee tearing up their employment contract. It is conduct that makes a continuation of the employment impossible and so the law allows you to terminate the employee with immediate effect.
• What is "gross misconduct" may be defined either bycontract (e.g. UK, US), case law(e.g. Canada, Belgium, Germany), Work Rules (e.g. UK, Taiwan)or byStatute/Labour Code (e.g.Austria, Cyprus, Poland, Ukraine, Turkey, UAE, Hong Kong, China, Thailand, Taiwan and Singapore). In the latter category, if a certain type of behaviour is not included in the statutory list or labour code, it is not gross misconduct and is therefore highly restrictive.The range of “grave” behaviour varies from country-to-country with common themes such as immoral behaviour, negligence, absenteeism, insubordination and commission of criminal offence.

In the US, employees can be terminated “at will” but contractual provisions often define what is “Cause” to allow the employer to avoid paying severance (e.g. upon termination or in a "change of control" scenario). "Cause" typically includes intentional harmful behaviour, wilful misconduct, gross negligence or commission of a crime. In the UK, an employer can specify in its disciplinary policy examples what it considers to be a fundamental breach of contract justifying a summary dismissal of the employee. The more explicit the list is, the easier it would be to rely on it as a ground for summary termination.

• Always make sure you have sufficient evidence to support an allegation of gross misconduct - don't just act on hearsay. Look for corroboration. Interview witnesses, interrogate email, audit unusual data downloads and review CCTV evidence (within the boundaries of applicable privacy laws). Review entry and exit logs at work premises and depending on the issue, social media postings.

Think Miss Marple and Inspector Cluedo - look at the facts, look for the evidence. It is important to work with other internal stakeholders such as Internal Audit, Chief of Information Security and Human Resources in order to complete your investigations.

• Be aware of the need to act quickly in cases of gross misconduct. In many countries, employers must take action within a short period of time and are barred from relying on historical acts in the event of a late discovery. For example, employers must investigate and take urgent action in the following countries: Belgium (within 3 working days of discovery), Germany (2 weeks of discovery), Poland (2 weeks of discovery, 3 months time bar) Ukraine (1 month of discovery, 6 months time bar); Turkey (6 working days of discovery, 1 year time bar). If something is serious and can result in job loss, the law expects employers not to rest on their laurels. These short time lines may make fact gathering and investigations hard to achieve for global companies.
• Remember that summary termination is the most draconian form of disciplinary action and creates the highest risk of employment litigation. Turfing an employee out into the streets with no financial security and the prospect of a negative employment reference incentivise employees to sue their employer. Where possible, consider if mutual separation, voluntary resignation or a settlement agreement are potential options to part ways with the employee after you have completed your internal investigations. In regulated sectors, it is however difficult to explore some of these measures when regulatory investigations are pending. This situation results in protracted periods of employee suspension and ongoing co-operation between the employer, employee and the regulator. The employer and employee will often be focussing on damage limitation strategies as the regulator digs deep. For those employees who have behaved badly, it could spell the end of their career in their chosen profession.

Julian Yewis a global employment counsel and has advised international businesses across a range of industries especially in the technology sector. He is passionate about helping businesses to grow and business leaders to succeed with particular interest in organisational strategy, culture, behaviour and cultural intelligence. He is widely published in the legal media and is the author of 5 employment law books, General Editor ofTermination of Employment (Bloomsbury)and regular contributor to theCross Border Employmentsections of Practical Law.