Deciding whether to dismiss someone for misconduct is tough. It’s not just about whether the behaviour was bad enough — it’s about whether your decision will stand up as fair and reasonable.

Get this wrong and you risk grievances, appeals, or even an employment tribunal.

Get it right and you protect yourself, the business, and your team’s trust in your leadership.

Here’s what you need to know as a manager — and how to put it into practice.

The Legal Basics You Should Know

• Under the Employment Rights Act 1996, “conduct” is one of the potentially fair reasons for dismissal.

• But a fair reason on paper isn’t enough. The way you handle the process also has to be reasonable.

• Failing on either point increases the risk of unfair dismissal claims.

Why this matters for managers: Following a clear, fair process doesn’t just protect the company legally — it protects you from having your judgement called into question.

Step 1: The Burchell Test — Investigate First

Case law: British Home Stores v Burchell (1978)
This set the standard for misconduct dismissals. To be fair, you must show:

1. You believed the employee did it.

2. That belief was based on reasonable grounds.

3. You investigated as much as was reasonable in the circumstances.

Manager Watch-Outs:

• Don’t jump to conclusions.

• Collect statements, check evidence, and ask questions.

• Document what you did — a paper trail can save you later.

Lesson from Rustambekov v Fieldfisher (2024): The employer dismissed without checking inconsistent CCTV and witness evidence and so the Tribunal said this was unfair.  If evidence doesn’t line up, keep digging or step back and ask: is there actually a case to answer?

Step 2: Reasonableness — Would Another Manager Agree?

Case law: Iceland Frozen Foods v Jones (1982)
Tribunals ask: Was the decision within the range of reasonable responses another reasonable employer would take?

Manager Watch-Outs:

• Think: “Would another manager in my shoes make the same call?”

• If you’re on the extreme end like, instant dismissal for a minor slip, think twice!

Real-World Examples:

• Romano v Norwich City FC (2025): Long-serving employee sent memes by mistake.

Tribunal said dismissal wasn’t reasonable — it was a one-off error, not harassment.

Manager tip: Consider intent, impact, and past record.

• Gomes v LHR Airports (2025): 20 years’ clean service, dismissed for sharing videos.

Tribunal said unfair — policy was vague, and dismissal was an automatic response.

Manager tip: Policies matter. If the handbook isn’t clear, speak to HR before acting.

• Dimbylow v Create Learning Trust (2025): Dismissal upheld because process was thorough. Employee was allowed to explain, challenge evidence, and have representation.

Manager tip: Give employees the chance to be heard. It strengthens your decision, whichever way it goes.

Step 3: Think Wider — the 8 lenses of a fair decision

Use these quick lenses before you choose a sanction.

1. Consistency & Custom/Practice

• How have similar cases been handled here (and in this team/site) before?

• If past practice was more lenient, have you got a clear, documented reason to depart now eg new policy, higher risk, prior warnings to the team about standards?

• If custom/practice conflicts with policy, pause and speak to HR. Resetting expectations should be communicated prospectively, not sprung on one person.

2. Proportionality (Sanction Ladder)

• Is there a milder, credible alternative to dismissal such as final written warning, training, demotion, loss of privilege, change of duties, supervision, zero-tolerance reset with notice?

• Does the sanction fit intent, impact, and risk of re-offending?

3. Equality Act & Adjustments

• Could disability, pregnancy, religion, or other protected characteristics be relevant to the behaviour or the process?

• Have you considered reasonable adjustments (eg timing, format of meetings, providing questions in advance)?

• Record that you’ve actively considered this.

4. Off-Duty Conduct & Reputation Link

• If conduct happened outside work/social media: what’s the clear link to the role, colleagues, customers, or reputation?

• Is that link spelled out in policy? If not, proceed cautiously and seek HR advice.

5. Policy Clarity & Communication

• Does your disciplinary or IT/Social Media policy actually cover the behaviour?

• Is “gross misconduct” described specifically enough to rely on? If it’s vague, don’t assume automatic dismissal.

6. Process Hygiene

• Separate roles have been deployed for the investigating manager, hearing chair and appeal chair to ensure nothing falls down on that procedural point.

• Avoid undue delay; suspension (on pay) is neutral, keep it under review.

• Share evidence in good time; allow representation and time to prepare.

7. Evidence Quality & Privacy

• You’re working on the balance of probabilities (not “beyond reasonable doubt”).

• Resolve discrepancies (CCTV vs witness). Keep a clear audit trail.

• Handle data lawfully (only what’s necessary; secure storage). Assume your notes may be disclosed in a SAR.

8. Stakeholder & Operational Risk

• Are there safety-critical or safeguarding risks that raise the bar?

• Have you weighed team culture, consistency signals, and potential precedent?

Manager tip: If two or more lenses raise amber flags eg policy vagueness + inconsistent past practice, pause for HR before deciding.

Manager’s Quick Checklist Before Dismissal

• Have I investigated fully (witnesses, evidence, records) on the balance of probabilities?

• Have I shared the evidence and given time to respond, with representation offered?

• Have I considered length of service, past record, and intent vs mistake?

• Does our policy clearly cover this behaviour including off-duty conduct if relevant?

• Custom & practice: Are we being consistent with similar cases? If not, is the departure justified and recorded?

• Equality & adjustments: Have I considered protected characteristics and reasonable adjustments?

• Proportionality: Did I consider credible alternatives to dismissal?

• Would another reasonable manager make the same call and could I defend this on appeal?

• Have I documented the decision path i.e. investigation - analysis - sanction chosen - reasons?

Why This Makes Your Life Easier

• Fewer appeals/grievances = less stress, less paperwork.

• Stronger team trust = staff see you as fair, not arbitrary.

• Better protection = no nasty surprises at tribunal.

• Confidence in decisions = you know you’ve followed the right process.

The Takeaway

A misconduct dismissal isn’t just about what someone did — it’s about how you handle it. Investigate thoroughly, be transparent, factor in context, and stick to what a reasonable manager would do. Do this and you’ll not only protect the business, you’ll also save yourself sleepless nights and build a reputation as a fair and capable leader.

👋 I'm Pam, founder of PM Business Support Services. I help first-line managers build confidence through:

• Software that simplifies people processes, keeps records compliant, and gives managers the tools to act without second-guessing

• Standards that reflect the Company values and give managers clear, consistent guidance — no more wondering “what’s the right thing to do?”

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