Gross misconduct

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.

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.

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.

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.

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.

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.

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.

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.

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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