Is there any difference between an honest mistake at work and act of misconduct?

Most employees are likely to admit they are not perfect, some will not, but we all make mistakes, and employers can get it badly wrong when having to deal with a genuine error.

The question as to the difference between a mistake at work and an act of misconduct or gross misconduct, may not be as straightforward to answer as it seems.

In any workplace, in any sector, mistakes are inevitable.  When something goes wrong at work it will usually lead to something bad happening

The instinctive response from an employer is to inevitably question why, and to want to establish what occurred, and to address it.

However, wrongly failing to identify the difference between an honest mistake and any type of misconduct can have significant consequences for an employer.

A fairly recent case in which a part-time admin worker was awarded £5,000 for unfair dismissal after accidently sending an abusive email to a customer, serves as a timely warning.

The employee was dismissed after sending a message to the customer in error, which was meant for a colleague [1] CITED 2.10.24

In the message, the worker advised a workmate that the customer, who is reported to have made ‘repeated complaints’, wanted to make a change to an order, but if it could not be done ‘… he’s a twat so it doesn’t matter if you can’t.’

The customer and his wife complained and are said to have threatened to post bad online reviews about the business.

The managerial team at the company reportedly later decided to ‘get rid of’ the employee, who was dismissed for sending the ‘disgraceful’ email.

The employment judge found the principal reason for dismissal was the threat made by the customer and his wife, and that it was unfair for the employer to dismiss the employee to appease the customer and avoid bad reviews.

Sending an email in error is not uncommon and, along with a range of other unintentional errors that can occur in the workplace, a proportional response is always important.

Mistakes can often lead to unfair disciplinary action. It is why it is crucial that employers carefully consider the context and intent involved in an employee’s conduct.

It is vital to distinguish between a simple mistake and misconduct, as treating both as the same can lead to unfair and unwarranted disciplinary sanctions being issued.

Mistake or misconduct ?

The Cambridge Dictionary defines a mistake as: an action, decision, or judgment that produces an unwanted or unintentional result [2] CITED 2.10.24

Mistakes at work can be as a result of an action, decision, or lapse in judgment that is misguided or wrong. It will generally be an accidental error due to a lack of knowledge, oversight or a simple blunder. For example, placing a wrong order or incorrectly carrying out an instruction. Such actions are usually isolated incidents and not reflective of an employee’s usual practice.

While ACAS describe misconduct as when an employee's inappropriate behaviour or action breaks the organisation's rules. [3] CITED 2.10.24

Misconduct will often occur as a result of an intentional act or careless behaviour, which breaches a company policy, procedure or required standards. An employer’s disciplinary policy will usually provide a non-exhaustive list of misconduct, which will often warrant disciplinary action being taken against an employee.

Why do employers get it wrong?

A mistake can be considered misconduct at work when it involves a breach of company policies, rules, or standards, especially if it is repeated or intentional

It is easy to confuse unintentional errors with deliberate and negligent behaviour. As both will result in something going wrong, there can be a rush to act, which will often see a genuine mistake wrongly being considered  as a sign of incompetence or disregard for policies and procedures. Especially as both a mistake and misconduct can cause harm and inconvenience.

Misunderstandings will often see a mistake deemed an act of misconduct as a result of unclear guidelines, which do not distinguish between the two.

The surprising and unexpected nature of a mistake can often lead to emotional reactions, especially if it has the potential to cause any type of harm to an employer. It can trigger a response that seeks to punish the individual rather than one that is considered and constructive.

The demands of any modern workplace can create a pressure to perform, which can often mean there is little tolerance for mistakes in a high-pressure working environment. In such a setting a manager is much more likely to view mistakes as misconduct to maintain strict standards.

It is essential that employers recognise the difference between mistakes and misconduct. Failing to do so can create a working environment of fear and defensiveness and one in which employees will be afraid and reluctant to admit errors, and miss the opportunity to learn from them.

The risks in treating a mistake as misconduct

There can be several negative consequences for an employer if it treats a mistake in the same manner as an act of misconduct.

Legal risks: Taking formal disciplinary action to deal with a mistake, especially when it leads to dismissal, can result in legal disputes and in some cases a claim for unfair dismissal [4] CITED 2.10.24

Fear in the working environment: Being innovative and creative involves an element of risk-taking, which can lead to mistakes being made. If a genuine error is seen as a disciplinary offence it could limit inventiveness.

Harm workplace morale: If workers are unfairly penalised for making honest errors it can impact negatively on individuals, making them feel demoralised and unappreciated.

High turnover: If the disciplinary process is used to punish mistakes rather than to correct them or encourage an employee, it can cause staff to leave in search of a more supportive and understanding employer.

How to deal with mistakes

A thorough and fair investigation is crucial in enabling any employer to differentiate between an honest mistake and an act of misconduct, which merits disciplinary action. The ACAS Code provides good practice guidance for conducting such an investigation [5] CITED 2.10.24

 A comprehensive, robust and open-minded investigation will help to establish a balanced view of the facts and circumstances in any case, leading to a clear and accurate understanding of what actually occurred.

It also helps to ensure that an employee is treated fairly and that any subsequent action, disciplinary or otherwise, is reasonable and justified. This is vital for maintaining trust and morale in the workplace.

When any type of workplace concern arises about an employee’s conduct, an investigation is the foundation of any fair and proportionate response. So doing it properly and getting it right will certainly help to reduce the risk of any later legal disputes or claims.

And of course everyone can learn something from a mistake. Understanding the root cause of any incident can help to prevent similar issues in the future, whether they come from misunderstandings, lack of training or intentional misconduct.

Finally

Establishing, identifying and understanding the difference between mistakes and misconduct in the workplace is crucial for maintaining a healthy and productive working environment.

An employer in taking a supportive and constructive approach to handling errors, can create a culture of continuous improvement and innovation.

Clear policies, open communication, and a focus on solutions can help to make sure mistakes are treated as learning opportunities rather than grounds for disciplinary action.