Gross Misconduct – A Guide For Employers

January 28, 2019

What is gross misconduct?

Gross misconduct is employee behaviour so serious it destroys trust and confidence between employer and employee, making the working relationship impossible to continue.

In a gross misconduct situation, an employee must have acted deliberately, and in full knowledge that they are breaching the terms of their contract. Or have been significantly negligent.

Employees can be dismissed without paid notice, but a fair process still needs to be followed.

Certain acts would almost always be considered gross misconduct. For instance:

  • Theft
  • Fraud
  • Physical violence
  • Turning up to work drunk

However, some acts of gross misconduct may be less black and white, and specific to your business context.  Staff must be made aware of any unacceptable behaviours which could result in dismissal. Employers should also be able to demonstrate how staff have been made aware of such behaviours.

Simply listing examples of unacceptable behaviours in your disciplinary procedures is not enough. We would additionally advise:

  • Cross referencing your employment contract and inserting clauses specifically outlining required /prohibited behaviours. And that failure to adhere to these behaviours may result in disciplinary action or dismissal for Gross Misconduct
  • Including details in your employee handbook, issued to and signed for by all staff
  • Including details of behaviours in your code of conduct or business values
  • Outlining required and prohibited behaviours in your staff induction training
  • Displaying posters reminding staff of expected /prohibited behaviours  

Different levels of staff misconduct

There are differing levels of staff misconduct, and appropriate actions which can be taken.

  • Misconduct – a staff member remains employed but with a formal sanction
  • Serious Misconduct – resulting in dismissal with paid notice
  • Gross Misconduct – summary dismissal

What is Summary Dismissal?

Summary dismissal is dismissal without paid notice.

TV dramas often portray employee misconduct, followed by immediate dismissal without any process being followed.

Please don’t do this! 

If you suspect Gross Misconduct by an employee, you must still follow a fair process.

What is a fair process?

A fair process in a Gross Misconduct situation would include:

  • suspension on full pay
  • a proportionate, objective investigation
  • a disciplinary meeting to consider the evidence and facts of the case
  • an adjournment before a decision is made
  • the right to appeal

Employees should also:

  • have the right to an accompanying colleague or trade union representative
  • be provided with investigation findings to help them prepare their case

Investigations should be carried out by someone not responsible for making disciplinary decisions.

You also need to demonstrate an appropriate amount of time has been spent on the issue. And that outcomes have not been pre-determined.

What are the 5 Fair Reasons for Dismissal?

  • Conduct
  • Capability/Performance
  • Redundancy
  • Statutory illegality or breach of a statutory restriction – for instance if you employ a driver who loses their driving license
  • Some Other Substantial Reason (SOSR)

If you need help with a potential Gross Misconduct situation, or other disciplinary or dismissal process, we’d be happy to help. Call Debbie today on 01278 802329.

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