Gross Misconduct: The Rhymes & Reasons

Many people may have heard the term gross misconduct or may even know someone dismissed for this reason. This topic is so vast and varied and can be a difficult concept to grasp. So, we are here to break it down for you!

Read on to find out everything you need to know about the ins-and-outs of gross misconduct.

What is Gross Misconduct?

Gross misconduct refers to an exhaustive list of actions or issues that could lead to employee dismissal.

What constitutes gross misconduct varies from company to company. Thus, there isn’t a comprehensive list.

Here are some points to take into account to narrow down this wide-ranging subject.

Gross misconduct generally:

• Involves an employee committing a severe or unacceptable action or course of actions
• These actions are often highly unprofessional, unethical, and grave.
• This behaviour will irreparably damage trust and undermine the working relationship between employer and employee.
• It will often damage the integrity or reputation of the workplace.

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Some examples of Gross Misconduct

Examples of prevalent cases of gross misconduct include:

• • Vandalism of property

• Gross negligence or breaches of health & safety rules
• Violent behaviour
• Theft, fraud, and dishonesty
• Insubordination
• Attending work influenced by drugs or alcohol
• Harassment, bullying or intimidation
• Accepting or offering bribes
• Sabotage, including impairment of company image
• Sexism or racial abuse
• Indecent behaviour
• Illegal or criminal acts – including those outsides of the workplace
• Misuse of confidential information

Grey Areas of Concern

As already stated, there is no exhaustive list. This leaves many actions open to interpretation and therefore, less clear-cut.

Some of these ‘grey areas’ can result in dismissal from some organisations, but not from others. These can include:

• Using company equipment to download software for personal use
• Using company equipment for personal internet usage, or personal telephone use
• Use of social media
• Tarnishing the reputation of an employer
• Setting up a competing business.

Conduct, Performance & Personal Issues

There are some highly questionable actions which, in rare circumstances, can result in gross misconduct. These situations often follow a protracted company improvement plan or written warnings.

Examples can include:

• Poor timekeeping
• Absenteeism
• Personal appearance
• Minor negligence or substandard work
• Injury or long illness
• Inability to continue to fulfil the requirements of a job. For instance, the loss of a driving licence for a driver.

We recommend that the above examples be dealt with as disciplinary issues, not through the gross misconduct or summary dismissal route. However, if you are in doubt, then you should always seek legal advice.

Summary Dismissal: What is it?

The outcome for many gross misconduct behaviours is summary dismissal, also known as instant dismissal. This simply means that an employee can lawfully be dismissed without notice or a payment in lieu of notice (PILON).

The Procedure for Summary Dismissal

You can summarily dismiss someone for gross misconduct which means you do not have to give notice or payments in lieu of notice.

Regardless of how grave or unacceptable the action of gross misconduct is, all employees are entitled to fair and lawful treatment. This means that an employer must investigate the incident and allow an employee the opportunity to respond before dismissal.

Any gross misconduct disciplinary procedure needs to be thorough and follow a strict process. Moreover, this is to ensure fairness and prevent the risks of an employee claiming for unfair dismissal.

Effectively an employer needs to prove that the actions or inactions of an employee were in serious violation of acceptable workplace conduct.

The necessary procedure is as follows:

Facts

You will need to establish all facts and collate evidence of the incident. This may involve investigations, interviews, speaking to witnesses and talking to the employee in question.

Pre-Hearing

Once all investigations are complete, a hearing should be arranged promptly. You will need to notify the employee that they are legally entitled to bring a ‘companion’ to the meeting. This can be a colleague or union official.

You will also need to ensure that the employee is fully aware of the allegations and what will be discussed in the meeting.

Post-Hearing

Once the hearing is finalised and an outcome decided, if dismissing the employee, you will need to present a formal letter confirming this.

The letter should include:

• Reasons for dismissal
• Legal basis for gross misconduct
• Details of any prior warnings
• Specifics of any holiday pay or final salary owing
• Information about returning property
• Details about the appeals process

Suspension

You may decide to suspend the employee while investigations are carried out. Often, depending on their contract, this will need to be done on full pay.

Suspension should only be used when essential. There will need to be clear evidence of misconduct and reasonable concern that their continued presence at work will result in a risk.

You must also be clear that any suspension is not equivalent to punishment or a precursor to the outcome.

How to safeguard against problems?

Dismissing an employee for gross misconduct should not be taken lightly.

It can be a complicated and convoluted process. It can leave the employer wide open to criticism or tribunal appeals.

As there is no definitive list for what is classed as gross misconduct, all employers need to be crystal clear in their employee credentials. This can include employment contracts, company handbooks and policy documentation.

Within this information, you should also include the consequences of breaching the policies and how the disciplinary procedure works.

Not being clear about your gross misconduct policy can leave an employer open to dispute, unfair dismissal claims or even prevent summary dismissal.

If you have been accused of gross misconduct at work, and are facing a disciplinary actions, our employment law solicitors will support and represent you through every investigation and hearing.

Gross Misconduct: Appeals & Disputes

If an employee can prove that they were unaware that their action would be a sackable offence, then it can leave employers exposed to an unfair dismissal claim.

However, to qualify for instigating an unfair dismissal claim, an employee will need to have been employed for two years or more.

If an employee has not served two full years of employment, they could still qualify to claim for unfair dismissal by proving that:

• the dismissal was connected to illegal discrimination
• health and safety
• whistleblowing
• trade union activities

Key Take Away

Gross misconduct can be tricky and unchartered waters to navigate. Every issue is different, unique, and open to further complications.
Whether you are a seasoned professional or new to hiring employees, there is no shame in asking for help, advice, and guidance.

Seeking out support from our expert solicitors can help prevent you suffering the stress and added cost of appeals and disputes.

Contact our expert employment solicitors today to talk through your options.

Read more: Constructive Dismissal: The Essential Guide For 2020!