Insubordination at work can be a serious matter, given its effect of damaging working relationships, undermining organisational authority and the potential to impact wider team morale. But does insubordination warrant disciplinary action?
What is insubordination at work?
Insubordination at work is essentially an act of serious defiance against authority. In other words, it is where an employee deliberately acts in a disrespectful manner towards their employer or superiors, or even about the business as a whole.
Common examples of acts of insubordination could include where an employee:
- Refuses to undertake and/or complete certain tasks
- Refuses to follow reasonable instructions or actively defies direct orders
- Acts disrespectfully toward their employer or superiors, either verbally through the use of foul language, or even through physical gestures such as eye-rolling or tutting
- Openly mocks or challenges business or management decisions
- Responds to constructive criticism with unacceptable excuses or unreasonably seeking to shift blame onto others.
Insubordination is generally relatively infrequent form of misconduct within the workplace, not least given that mutual trust and confidence forms such an assumed and necessary part of the working relationship between an employer and employee. In fact, a duty of mutual trust and confidence is implied into all employment contracts, even where this is not expressly stated.
But where an act, or series of acts, of insubordination do take place at work, it is important for an employer to know how to fairly and lawfully handle this type of misconduct and to understand the organisation’s obligations and the employee’s rights through a disciplinary procedure.
What is serious insubordination?
Gross misconduct at work is an act so serious that it justifies summary dismissal of an employee for a first offence, in other words, dismissal without notice or pay in lieu of notice. In broad terms, the act must be one that irreparably damages the trust and confidence between the employer and employee, such that the working relationship has become untenable. Typically, gross misconduct will cover things like physical violence, indecent behaviour, intoxication, theft or fraud, misuse of property, or serious breaches of health and safety.
In the context of insubordination, whilst the gravity of the matter will depend upon the facts of the case, there are undoubtedly occasions when this type of misconduct can be so serious so as to breach the implied duty of trust and confidence in such a way that this may qualify as gross misconduct and justify summary dismissal.
Examples of acts of serious insubordination that could potentially amount to gross misconduct could include where an employee:
- Is verbally and/or physically rude, aggressive or threatening to their employer or superiors
- Is noticeably disrespectful to their employer or superiors through the use of vulgar or mocking jibes
- Criticises their employer or superiors, or the business or organisation as a whole, via social media or otherwise in a public manner
It is advisable to set out in writing specific examples of what constitutes serious insubordination within the employee’s contract of employment, staff handbook or as part of the organisation’s disciplinary policy.
Dealing with insubordination at work
The manner in which insubordination at work should be handled will largely depend on the nature and severity of the incident(s) in question.
Where the misconduct is relatively minor and there are mitigating circumstances, especially where it is a one-off incident and the employee has a good prior disciplinary record, an informal chat between the employee and their line manager or immediate boss should generally be sufficient to deal with the matter. This can often be the quickest and easiest solution. Employers should retain records of all such conversations.
However, in circumstances where employee insubordination is fairly serious or, alternatively, there have been a series of relatively minor insubordinate acts that, taken together, can be treated more seriously, the employer may decide to initiate disciplinary proceedings.
A disciplinary procedure is a formal way for an employer to deal with any unacceptable or improper behaviour within the workplace on the part of an employee. Even in cases of gross misconduct that may potentially warrant summary dismissal, the employer must first follow a full and fair procedure before making any decision to dismiss.
In many cases, employers will already have in place some form of written disciplinary procedure, setting out the steps they must follow when investigating either an isolated act, or ongoing issue, of insubordination. That said, as an absolute minimum, any procedure must comply with the ACAS Code of Practice.
The ACAS Code sets out the basic requirements of fairness applicable in most cases, and is intended to provide the standard of reasonable behaviour to be applied in most disciplinary situations.
Any failure to follow the Code will not, in itself, make an employer liable to proceedings, nor does it automatically make the subsequent dismissal unfair. However, an employment tribunal can increase awards of damages made against an employer by up to 25% for any unreasonable failure to meet the minimum standards set down by ACAS.
Taking disciplinary action
The way in which an act or issue of insubordination should be dealt with, in other words, either informally or formally, will primarily be determined by the nature and extent of the misconduct in question.
However, in the event that formal disciplinary proceedings are deemed necessary, as a minimum, the procedure should include the following steps.
A full and fair investigation should be conducted by the employer, without unreasonable delay, to collate as much information as possible about the facts surrounding the allegation(s) of insubordination, including any possible mitigating circumstances. This could include, for example, interviewing the employee and/or any potential witnesses.
Where the investigation shows that the employee has a case to answer, they should be invited to a disciplinary hearing, again without unreasonable delay. This should be set out in writing, providing the employee with copies of any witness statements in advance to allow them to prepare their case. The employee should also be notified of their right, to be exercised on reasonable request, to be accompanied to that meeting by a colleague, trade union representative or trade union official.
At the disciplinary meeting, the employer should explain the basis of the complaint, with reference to any evidence collated during the course of the investigation, providing the employee with an opportunity to respond to any allegations, ask questions of any witnesses and put forward any evidence of their own. The employee’s companion should be allowed to present the employee’s case, where the employee so wishes, although they will not be permitted to answer any questions on their behalf.
Having heard all the evidence, the employer will need to make a decision as to what, if any, disciplinary action needs to be taken based on what is fair and reasonable in all the circumstances, including decisions made in any previous similar cases. Further, the employer will need to promptly notify the employee of their decision in writing. In the event that disciplinary action is to be taken, the employee should also be notified of their right to appeal. The employee can appeal either on the basis that the outcome is wrong or unjust, or that the disciplinary procedure was unfair.
The employer should retain an accurate written record of the disciplinary process for future reference, not least if the matter results in a complaint to the employment tribunal for unfair dismissal.
Disciplinary outcomes for insubordination
There are a number of potential outcomes when dealing with insubordination as a disciplinary matter, although what is fair and reasonable will depend on all the circumstances of the case. The organisation’s disciplinary policy should also be referred to, to ensure fair and consistent treatment of all employees.
Verbal warning
Verbal warnings are used where the insubordination is only minor or there are mitigating circumstances. However, given that the employer’s decision to provide a verbal warning will still need to put in writing, employers may opt to issue a first written warning instead.
First written warning
Where the insubordination is a one-off or first incident, a first written warning may be issued. The warning should provide specific goals and timeframes for improvements, setting out the consequences of further complaint.
Final written warning
Where there has been a further act of insubordination, or where the initial misconduct is so serious, it may warrant moving directly to a first and final written warning. The warning should again explain what improvements need to be made within a set period of time, and what will happen for any failure to do so.
Dismissal
Where the insubordination is ongoing, or where the initial misconduct was so serious, it may justify summary dismissal. However, even with summary dismissal for gross misconduct, the employer must still follow a full and fair disciplinary procedure, providing the employee with a chance to respond before deciding to dismiss them.
In the event that the decision is taken by the employer to dismiss an employee for insubordination, the employee must be notified in writing of the reasons for their dismissal, their period of notice, if any, and the effective date of termination of their employment contract.
In circumstances, however, where an employer issues a written warning, in the event that the employee’s conduct does not improve within the required timeframe, the employer should repeat the disciplinary procedure until improvements are made, or until dismissal is the only fair and reasonable option.
How to write a disciplinary letter for insubordination
In circumstances where a written warning is deemed appropriate to deal with any insubordination, the letter will not only need to set out the reasons for the disciplinary action, but also provide the employee with an action plan. In other words, the letter must set out specific goals for improvements, explaining the consequences of any failure to meet these goals within a certain timeframe.
In particular, a written warning letter should contain the following:
- The nature of the misconduct issue, namely the incident, or series of acts, of insubordination
- The improvements required, for example, for there to be no further acts of insubordination, together with a timescale
- The likely consequences of further misconduct or insufficient improvement, namely, a final written warning or, depending on the severity of any further misconduct, dismissal
- The length of time that the warning will remain effective, with an explanation that this will remain on the individual’s personnel file but will be disregarded for disciplinary purposes after a certain period of time, provided their conduct reaches a satisfactory level
- The employee’s right to appeal this decision, including how to appeal and by what date.
In circumstances where a further written warning is required, any action plan, together with the timescale and potential consequences of any further complaint, will need to be revised.
Managing an insubordinate employee
Insubordination can often build up over a period of time, beginning with minor acts of insubordination that, cumulatively, can seriously impact on the working relationship between the employer and employee. In these types of cases, an employer should always consider taking a more informal approach at first, providing the employee with a reasonable opportunity to correct the problem.
An informal chat may even establish the root cause of the problem, for example, it can often transpire that an employee has a legitimate grievance that is wholly, or in part, the reason behind any displays of insubordinate behaviour, and in relation to which the employee may want to lodge a formal grievance.
Having clear written disciplinary and grievance procedures in place is crucial to both preventing and fairly handling insubordination in the workplace. In particular, any written procedures should clearly set out what types of behaviour might lead to formal disciplinary action, including what constitutes misconduct and gross misconduct, and what sanctions may be imposed in consequence.
Cases involving insubordination can be extremely complex. Employers looking to discipline or even dismiss an employee for an act, or series of acts, of insubordination, or employees being threatened with disciplinary action for insubordination, should take expert advice from an employment law specialist should be sought at the earliest possible opportunity to ensure you proceed in your best legal interests.
Need assistance?
DavidsonMorris’ employment law experts bring substantial experience in workplace disciplinary matters, including dealing with serious insubordination at work. We can help ensure your policies and processes are effective and compliant with ACAS guidance, and provide advice on specific cases to manage the legal risks of any potential workplace dispute. Contact us for help and advice on workplace insubordination.
