Disciplinary measures: Misconduct

Any breach of discipline constitutes misconduct which may result in a sanction proportionate to the seriousness or repeated nature of the misconduct.

The seriousness of an offence is assessed on the basis of the circumstances in which it was committed and the nature of the duties performed by the employee at fault.

The offence is considered all the more serious if it jeopardises the employer’s interests.

Disciplinary offences

There are three types of misconduct characterised by an employee’s failure to fulfil an obligation:

1. Minor misconduct,
2. Serious misconduct,
3. Gross misconduct.

It is up to the employer to determine the seriousness of the misconduct without classifying it.

Minor misconduct

Minor misconduct is divided into two types

• Minor misconduct, which does not justify termination of the employment contract but does warrant disciplinary action,
• Serious misconduct, which may warrant termination of the contract in certain circumstances, particularly where it is repeated.

The employee retains the right to statutory severance pay.

Serious misconduct

This precludes the employee from remaining with the company. The existence of serious misconduct must lead the employer to answer ‘no’ to the following question: ‘Can we allow the employee to serve their notice period?’

An employer wishing to dismiss an employee for serious misconduct must immediately suspend the employee pending further action: otherwise, the employer could be criticised by the court for failing to establish that the misconduct was serious enough,

Similarly, an employer wishing to dismiss an employee for serious misconduct cannot grant a notice period, as this risks the misconduct being reclassified.

In the event of dismissal for serious misconduct, the employee is entitled to their acquired rights and dismissal rights, as applicable.

Gross misconduct

This is committed by the employee with the intention of harming the employer or the business. It results in the loss of all compensation,

It also provides grounds for bringing a claim against the employee for damages.

Even acquired rights (with the exception of the certificate of employment) may be withheld pending the final court decision.

Constituent elements of misconduct

• Bringing alcoholic drinks onto the workplace or consuming them there,
• Bringing toxic or prohibited substances onto the premises,
• Entering or remaining on the premises whilst intoxicated,
• Refusing to work overtime or carry out assignments,
• Sleeping at the workplace,
• Spending time on activities unrelated to work,
• Using company equipment for personal purposes without authorisation,
• Committing, allowing or inciting any act likely to disrupt the working environment,
• Carrying out, without authorisation, other work that is detrimental to the purpose of one’s employment,
• Smoking outside the area explicitly designated by the employer.