Dealing with employee insubordination

As an employer you are entitled to expect that your employees behave in a professional way, carrying out your instructions, complying with company rules and behaving appropriately to other staff. Under English law there is a duty of implied trust and confidence implied into every employment contract. Over and above that, it’s largely up to employers to establish expectations and rules in their employment contracts and policies, including what will or might amount to employee insubordination and the possible disciplinary consequences.

In a fast changing society where old fashioned management styles of giving instructions are frowned upon, employers can face a dilemma. Set too many rules with severe consequences to protect yourselves and this can create problems. If you do not have any rules or do not consider what you would consider insubordination and you may end up with ongoing employee issues, low morale and difficulty if you want to dismiss an employee quickly.

With any kind of employee action that may lead to disciplinary action or dismissal, it is important to remember 2 key starting points :-

• An employee can only claim unfair dismissal where he/she has 2 years continuous employment with you (although any employee can claim discrimination from day 1 of employment); and
• If an employee qualifies to claim unfair dismissal, as regards the substance (not the process) of an employer’s decision to dismiss, the Employment Tribunal cannot substitute it’s own view for yours. So, as long as any decision you make is not obviously outside what a range of employers might do, you are on solid ground legally.

Employers dilemma with ongoing insubordination

Insubordination is most often a series of acts of defiance or unco-operativeness by an increasingly disgruntled employee. It can range from constant whingeing and sniping to other employees, to turning up late repeatedly, negative attitude and body language and a range of other acts which undermine authority.

It can be difficult to change an employee’s behaviour and a dilemma that employers face is that if the employee’s actions initially are unlikely to amount to serious insubordination and gross misconduct, the employer should follow it’s disciplinary process which may mean a series of warnings before dismissing. This could take many months whilst the employee in question creates problems and damages morale. If an employer decides that this is too damaging and moves straight to dismissal, even if the employee cannot claim unfair dismissal they may still claim they have suffered some form of discrimination. For this reason, consistency in approach in dealing with employees is something employers should always be aware of.

One option employers may consider is the possibility, at an early stage after an employee becomes troublesome is whether to explore, on a without prejudice basis, mutual termination of employment with a settlement agreement.

Can an employer dismiss for serious insubordination?

Yes, 1 act of serious insubordination can legally amount to gross misconduct, but great care should be taken before dismissing. Before doing so, check your contracts and policies and also check how you have dealt with any previous, similar cases and of course, consider how long the employee has worked for you (to see if they might claim unfair dismissal). Do not simply dismiss them on the spot, even if they behave outrageously towards you in front of others.

Serious insubordination would be something likely to seriously damage or destroy the relationship of mutual trust and confidence between employer and employee. Employers can and should consider setting out some clear examples of insubordination which might result in possible dismissal for gross misconduct.

Examples might include :-

• Where an employee is threatening and aggressive, either verbally or physically,  towards their manager.
• Unauthorised disclosure of confidential information.
• Refusing to Comply with Company Policies - especially when these policies are crucial for safety, security, or regulatory compliance.

How we can help

Insubordination, in today’s society is becoming more common. The best approach is to ensure there is clarity from the start with employees. Our experience includes :-

• Ensuring you have bespoke, balanced rules in your policies and procedures dealing with possible insubordination, including areas such as working from home.
• Advising you on disciplinary process if you have an insubordinate employee.
• Negotiating an employee exit where the relationship has broken down.
• Defending unfair dismissal and/or discrimination allegations and claims.

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