Strong Foundations: The Importance of Remembering the Basics
With much attention understandably being focused on forthcoming changes to employment law brought about by the Employment Rights Act 2025, it remains important to remember the basics. I have encountered several occasions recently where clients considered disciplinary proceedings, but their approach was out of step with how employment law works with regard to misconduct allegations.
First, in a case involving an allegation of fraudulent activity, the employer stated that they did not want to commence disciplinary proceedings because they could not “prove” the fraud. In making this analysis, the employer effectively applied the criminal burden of proof of “beyond reasonable doubt”. However, this is the wrong test. Employment law does not require proof. Instead, to establish a fair dismissal in the context of serious misconduct there are three considerations:
Did the employer genuinely believe the employee to be guilty of misconduct?
Did the employer have reasonable grounds for that belief?
Was the belief based on a reasonable investigation?
So in employment law the bar is set significantly lower than in the criminal context. In a case such as this, there may be no reasonable prospect of success in a prosecution, but that does not prevent the employer from dismissing if a reasonable investigation has taken place and the chair of the disciplinary hearing genuinely believes that the employee is guilty.
The application of this test also becomes relevant where an employee makes an allegation about something said to them in a one-to-one conversation. Employers suggest that they cannot make a conclusion about what happened because “it’s one person’s word against the other”. Wrong approach. The employer must listen to the two accounts of the conversation and is entitled to decide who they believe and disbelieve.
Putting an allegation of dishonesty to an employee is obviously a difficult exercise. I’ve seen examples of employers avoiding this by diluting the allegations. For example, in the case of an employee whom the employer believed had submitted fraudulent expenses claims, the employer, to avoid the discomfort of putting an explicit allegation of dishonesty, put to the employee that he had failed to comply with the company’s expenses policy. Big mistake. An employee is unlikely to be fairly dismissed for failure to follow a policy, whereas had the actual allegation of dishonesty been put, the employer would have been in a much stronger position.
None of this is easy, but employers must be explicit and direct in putting serious allegations to the employee. If the employer believes that the employee has been dishonest, this must be stated in plain terms.
The Sherrards Academy, UK Employment Law Course – CPD Accredited Training
15th Cohort, commencing Tuesday 28th April 2026
Robust employment law training is not just beneficial—it’s essential to delivering confident, compliant, and commercially sound people management. HR professionals are often the first port of call for complex issues around conduct, capability, discrimination and grievances, and having a clear grasp of UK employment law fundamentals enables you to give accurate guidance every time. High‑quality training empowers organisations to handle risk proactively, support managers more effectively, and ensure that day‑to‑day decisions align with legal obligations and best practice.
Our upcoming cohort of the Sherrards Academy UK Employment Law Course covers the fundamentals of UK employment law whilst providing the legal clarity, confidence and practical insights HR professionals need to navigate the upcoming reforms effectively.
Commencing next month, the training covers eight core modules, delivered across four one hour live webinars, each running from 12:00 to 13:00 via Zoom.
Webinar 1 – Tuesday 28th April • Unfair Dismissal • Discrimination and Harassment
If you would like further information or support with any of the topics detailed please email advice@sherrardslaw.com or call the office on 01273 834120 to talk to a member of the team.
