Gross misconduct

In this guide, we will discuss what is classed as gross misconduct and how employers can protect themselves from unfair dismissal claims, and employment tribunals.

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Gross misconduct

Many offences come under gross misconduct. Ultimately, it is when an employee has done something very serious at work with serious effects.

It can be difficult when employers are faced with gross misconduct allegations. It might mean instant dismissal for the employee involved.

Allegations of gross misconduct still come with legal risks for employers. It involves undergoing a full and fair investigation and all disciplinary procedures and rules must be met.

In this guide, we will discuss what is classed as gross misconduct and how employers can protect themselves from unfair dismissal claims, and employment tribunals.

an employer is stressed looking at gross misconduct documents

Page Contents

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    What constitutes gross misconduct in the workplace?

    It can sometimes be hard to define what constitutes gross misconduct. This is because so many cases fall under it and they are usually uncommon.

    Serious inappropriate behaviour or conduct is usually regarded as gross misconduct. Conduct refers to how an employee acts and behaves at work.

    Gross misconduct can cause reputational damage and break the trust of both the employer and the employees. Causing the contractual relationship and working relationships to deteriorate.

    You should outline in your employee handbook what constitutes gross misconduct with your own organisation’s rules. This could include the appropriate standards of employee conduct in the workplace.

    Employee handbooks also allow employees to know the process and what any potential consequences are, including the disciplinary process.

    an employee arrives drunk to work and falls asleep at their desk

    What are examples of gross misconduct?

    Gross misconduct covers a whole host of inappropriate and offensive behaviour while at work. This could include:

    • Gross negligence.
    • Physical violence.
    • Fraud.
    • Serious insubordination.
    • Illegal drugs or alcohol.
    • Damage to company property.
    • Serious health & safety breaches.
    • Discrimination or harassment.

     

    Employers must still follow a fair and reasonable investigation. Disciplinary hearings allow the accused employee to state their case. Only after this procedure can you think about dismissals.

    an employee drink drives in a company car

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    Gross negligence

    Workplace gross negligence is when an employee seriously lacks care for colleagues or their own professional duties.

    This type of gross misconduct could be intentional or unintended. Ultimately, it could include anything that would be deemed unsafe. For example, not handling harmful chemicals carefully.

    Usually, this sort of behaviour would cause a loss of trust between employer and employee.

    Physical violence

    Physical violence in the workplace includes behaviour of a violent or threatening nature. Acts of physical violence might include physical bullying, harassment, or threats of violence towards employees.

    gross misconduct of violence

    Fraud or theft

    This type of gross misconduct violates working relationships through dishonest and fraudulent behaviour. Fraud might include an employee fraudulently claiming expenses or payroll fraud.

    Employee theft includes taking cash, stealing expensive office supplies, forging expense claims, or stealing from colleagues.

    Fraud and theft could lead to employees facing criminal charges if they caused significant damage to your business.

    Serious insubordination

    An employee who refuses to follow their manager’s reasonable instructions could be committing gross misconduct. This is known as serious insubordination.

    An employee’s behaviour must be serious for it to be classed as gross misconduct. It could cause a break in trust between you and your employee.

    Insubordinate behaviour that could be deemed serious might include aggressive, or threatening behaviour.

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    Illegal drug or alcohol use

    Showing up to work intoxicated or under the influence of illegal drugs could be a form of gross misconduct.

    Employees that work in this condition are typically incapable of working safely and effectively. Illegally buying or selling drugs is generally considered gross misconduct as well.

    Damage to company property

    Gross misconduct could include employees who deliberately damage company property or accidentally do so carelessly.

    Examples could include acts of recklessness or gross negligence, such as damaging laptops, mobile phones, and company cars thoughtlessly.

    A more serious case of damage to company property is arson. Employers may need to contact the authorities in cases like these.

    Serious health & safety breaches

    Serious breaches of health & safety could be another type of gross misconduct. When an employee’s behaviour is unsafe towards themselves and their colleagues, it can risk or harm all of those involved.

    As an employer, you must inform staff of your business’s health & safety rules in the employee handbook.

    Staff have a duty of care to work with you concerning health & safety matters, ensuring they are reasonable and not careless when following your business’s safety procedures.

    health & safety exit sign

    Discrimination or harassment

    Employees must be legally protected against discrimination and harassment in the workplace. As an employer, it is your responsibility to implement policies that help prevent these from happening.

    If your staff discriminates or harasses another staff member this could be gross misconduct. An example could be sexual harassment, where a staff member has unwantedly received conduct of a sexual nature.

    Protected characteristics from discrimination include:

    • Race.
    • Sex.
    • Religion or belief.
    • Sexual orientation.
    • Gender reassignment.
    • Age.
    • Disability.
    • Pregnancy and maternity.
    • Marriage and civil partnership.

    You must state what you deem as gross misconduct in the staff handbook along with your company’s disciplinary policy.

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    What is the difference between misconduct and gross misconduct?

    There is a big difference between ordinary misconduct and gross misconduct. Examples of misconduct could include employees who break less serious rules, such as persistent lateness or badly executing work.

    Gross misconduct is when employees break serious rules. Usually so serious that it warrants a disciplinary or even dismissal where the employee would not have to work their statutory/contractual notice.

    a confused employer find out about gross misconduct

    How can employers manage cases of gross misconduct at work?

    When handling gross misconduct cases, it’s best practice for employers to follow the Advisory, Conciliation and Arbitration Service disciplinary code. Or you can follow the process outlined in your disciplinary policy, which should follow the Acas code as a minimum.

    To take disciplinary action or dismissal without notice you need to conduct a reasonable investigation.

    Even if you have reasonable grounds for believing the employee is guilty, a fair procedure must be followed. This would include gathering sufficient evidence. You will need to conduct a thorough investigation to do this.

    You will need to act quickly and effectively to gather sufficient information. This is to minimise disruption to your business. Ensure to collect relevant evidence, such as witness statements and written documents.

    You may need to involve an external HR and employment law professional. They will have experience in conducting fair procedures.

    It is also wise to look at how past similar gross misconduct cases were handled within your business to ensure consistency.

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    How to conduct a fair disciplinary procedure?

    Once an investigation has been conducted and sufficient evidence gathered, you can invite the employee to a disciplinary hearing. You will need to write a letter to your employee.

    Some things to include in the letter are:

    • The specific kind of gross misconduct allegedly committed.
    • The potential disciplinaries outcomes that might be given.
    • Date of the disciplinary hearing.

     

    Make sure you give the employee plenty of notice before the hearing so they can prepare. You should also provide the employee with all the evidence you have gathered.

    They have the right to be accompanied by a relevant person to the hearing it cannot be an impartial person.

    The employee’s companion can be:

     

    • Trade union representative.
    • A work colleague.
    • An official employed by a trade union.

    How to conduct a disciplinary hearing

    At the hearing, employers should state the gross misconduct allegations against the employee and present the evidence. You should also make sure notes are taken.

    You should allow the employee to put their case forward. New evidence may be submitted to help the employee’s case. If this happens you can pause the disciplinary hearing and further investigate the case.

    an employer conducts a disciplinary hearing

    What to do after the hearing

    Once the disciplinary hearing is over review all the information and decide on the most appropriate outcome.

    You should inform the employee of your decision in writing as soon as possible. Make sure to include a reason for your decision and that the employee has the right to appeal the disciplinary penalty if they have a contractual right.

    When deciding on your decision it’s good to think about any other mitigating factors and circumstances, and the employee’s previous conduct and disciplinary record.

    Disciplinaries outcomes could include:

    • A first or final written warning.
    • Redeployment.
    • Demotion.

     

    You must follow a fair process when making this decision, and ensure contractual terms are not broken.

    a warning letter to an employee

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    Gross misconduct dismissals

    If you decide that gross misconduct warrants more than a disciplinary, you could dismiss the employee.

    However, you must show that you have treated the employee fairly and without discrimination. You might need to prove that the employee’s guilty of gross misconduct.

    You should not dismiss an employee without following a fair disciplinary process. If you fail to do this the employee could claim unfair dismissal and the case could go to an employment tribunal.

    To dismiss fairly you will need to show that:

    • Dismissal is a reasonable outcome to the act of gross misconduct.
    • The belief of gross misconduct was on reasonable grounds.
    • You investigated gross misconduct in a reasonable way. It could involve processes that are in line with the disciplinary and grievance procedure and follow the Acas code of practice if there is no process in place.
    • You ensured the employee was aware of what signifies gross misconduct and made the information easy for the employee to access, for example, in the employee handbook.

     

    Gross misconduct that has followed all these steps can lead to instant dismissal without payment in lieu of notice (PILON). This is also known as summary dismissal.

    If you think an employee has caused reputational damage and cost your business money you could take legal action. This can be very risky and difficult so you should ask for HR advice. It would involve the civil courts.

    an employee is dismissed because of gross misconduct

    What happens if an employee claims unfair dismissal?

    An employee can only claim unfair dismissal if they have two years of service with you. If they do, then the claim could go to an employment tribunal.

    The tribunal would decide if the gross misconduct dismissal was one that a reasonable employer would make. They will be looking to see if your decision was determined by undergoing a fair process.

    What happens in an employment tribunal?

    The employment tribunal will take into consideration all the details of the case. This would include the investigation you conducted, if you followed a fair process and the information you provided the employee about the disciplinary procedure.

    It will also assess whether your response to the employee’s gross misconduct was reasonable. If the tribunal finds that you were not reasonable the dismissal could be deemed unfair.

    The decision made will be sent to you by post a few days or weeks after the hearing. In some cases, the decision will be at the hearing.

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    Get expert advice on gross misconduct

    It can often be hard to navigate gross misconduct cases. Especially if you don’t have professional HR advice.

    It involves leading a fair and reasonable investigation. And taking disciplinary action towards an employee and in some cases dismissal. This can be risky if you are not familiar with the procedure. You don’t want an employee making an unfair dismissal claim.

    Employment tribunals can be expensive for employers and can cause reputational damages to your business. That’s why we offer 24/7 HR and employment law advice at Employers Direct. We take care of everything from all the legal processes to advice on dismissing the employee.

    Want to find out more? We provide free legal advice and will help you decide the best course of action. Contact us at 0800 152 2287  or click here. 

    an employer ring employers direct because of gross misconduct

    Employers Direct offers FREE HR Advice to businesses of all sizes, within any industry in the UK. Our qualified HR advisors are here to offer your business confidential, in-depth, actionable advice on any HR query or issue you may face.

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    FAQs

    We’re here to answer any questions you might have with expert ease.

    There is a long list of offences that come under gross misconduct. Ultimately, it is when an employee has done something very serious at work with serious effects.

    It’s good to ask yourself was the offence gross misconduct as set out in your policies, employee handbook and contract of employment. If in doubt speak to an HR and employment law professional.

    Discrimination

    There are many different types of discrimination in the workplace. That’s why at Employers Direct we give employers professional advice and support 24/7.

    Find out more

    Breach of contract 

    We will advise you on all the remedies for a breach of  employment contract so you can have peace of mind.

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    Unfair dismissal

    Whether you’re unsure what to do with an unfair dismissal claim or need support on an employment tribunal. We’re on hand to help.

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    Harassment

    Dealing with harassment claims, especially sexual harassment at work can be tough for an employer. We give free expert advice to help solve any issues.

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    Bullying 

    If you’re an employer struggling with bullying in the workplace and a claim has been made, we will support you.

    Find out more

    We have years of experience advising employers on HR issues and employment disputes.

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    Speak to us for free advice 0800 464 0968

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