What is gross misconduct?
Gross misconduct covers a long list of offences that staff members could commit at work. This behaviour is unprofessional and unethical, falling short of regular standards in the typical workplace.
Conduct this severe destroys the relationship between employer and employee and warrants instant dismissal (also known as ‘summary dismissal’)—without notice and without pay in lieu of notice (PILON).
What constitutes gross misconduct in the workplace?
It is hard to define gross misconduct because there are so many examples of it. However, a few gross misconduct examples are:
- Theft or fraud.
- Physical violence or bullying.
- Damage to property.
- Serious misuse of an organisation's name or property.
- Deliberately accessing internet sites that contain pornographic or other offensive material.
- Setup of a competing business.
- Misuse of confidential information.
- Serious insubordination.
- Discrimination or harassment.
- Bringing the organisation into serious disrepute.
- Offering or accepting bribes.
- A serious breach of health & safety regulations.
- A serious breach of confidence.
- Causing loss, damage, or injury through serious negligence.
- Serious incapability at work due to alcohol or illegal drug use.
This list is not exhaustive.
You should make sure that your business identifies what you deem to be gross misconduct in advance of any hearings. Great places to do this are the contract of employment and the staff handbook.
If you want to be on top of the game, also list the offences that the business would sanction with summary dismissal. You could also make clear that the list, like ours, is not exhaustive.
Make sure that you also have a written procedure, which all staff can access, for handling allegations.
The difference between misconduct and gross misconduct
Minor misconduct examples include frequent lateness, failure to finish work tasks on time, failure to follow instructions, and poor execution of tasks. This list is also not exhaustive.
As you can see, the difference between the two types of misconduct is substantial. Furthermore, if the employee’s behaviour was deliberate or amounted to gross negligence, it should be considered gross misconduct.
If a hearing finds the staff member guilty, you can dismiss them with immediate effect.
How should I manage an allegation of gross misconduct at work?
After an allegation, the first thing you should do is choose whether to suspend the employee (on full pay). Good reasons to do so are if they could pose a risk to your business, if they could be a risk to themselves or others (for example, if they are very drunk and their job requires them to operate machinery), or if the person could influence any witnesses by staying in work.
If you choose to let them stay at work, go through a risk assessment with them.
You should make it clear to all that a suspension is not a sanction.
Your next step should be to find facts. Collect evidence and ask witnesses for details of what happened.
If you find something that supports the allegation, it is time to invite the employee to a disciplinary hearing. Do this in writing. In the letter, you must give details of the offending behaviour. You should mention that they have the right to a colleague or trade union representative accompanying them.
All hearings should include a chairperson and a person to take notes—both of whom should be impartial. By having somebody to take notes, you will be adding to your records of the process.
At the hearing, you must give access to the evidence you are relying on in the interest of being transparent.
After the hearing, what should I do next?
Adjourn the hearing before you decide on the outcome. It is important that you think about the mitigating factors. For example, if the employee is a long-serving member of staff whose record has been clean up to this point.
You must then inform your employee, in writing, of the hearing’s outcome. You should set out:
- The nature of the gross misconduct.
- Any given time for them to improve and what improvement you expect.
- The disciplinary penalty and, if needed, the length of the penalty.
- The consequences of further misconduct or poor performance.
- The timescale for them to lodge an appeal and how they should make it.
- Your reasons for the action taken.
The penalty for gross misconduct is often a final written warning, demotion, or dismissal. If you conclude that you must dismiss them, you should make sure that you meet these criteria:
- The decision was one that a reasonable employer would make.
- It was a fair and reasonable decision given the circumstances of the matter.
- The offence warranted immediate dismissal.
How an employment tribunal will treat an unfair dismissal claim after gross misconduct
If the employee makes a claim against you following an upheld appeal, an employment tribunal will investigate the conduct of your company to determine whether your decision was reasonable and fair based on your findings.
With the abolition of tribunal fees, it is now easier than it has been in years for people to take their employer to a tribunal if they think they have a claim.
Even if you have acted in a fair and reasonable manner in investigating the allegations of gross misconduct, you might find that the person you dismissed makes an ‘unfair dismissal’ claim against you.
There are many factors that a tribunal would consider when deciding whether the penalty of dismissal was fair. These include:
- Did you have a true belief in their guilt?
- Was it reasonable to hold this belief after this investigation?
- Did you give them a chance to state their case?
- Did you give them all information that you had gathered?
- Did you warn them that they were to attend a disciplinary hearing?
- Did you give them time to prepare for it?
- Did an impartial individual chair the hearing?
- Was the offence gross misconduct as set out in your policies, staff handbook, and contract of employment and did the employee have access to these documents?
- Did you consider other options than dismissal?
- Did you consider mitigating factors, such as ignorance, health problems, provocation, etc?
- Have you been consistent in invoking this penalty in similar cases?
- Did you inform the employee of their right to appeal and their deadline to do so?
- Did you follow the policy set out in your staff handbook?
The tribunal will look at whether you missed any steps in your process that you should have taken.
Keep records of everything to be prepared for a tribunal if one occurs. Evidence includes:
- Contract of employment and any variations.
- Staff handbook.
- Documents and recordings relating to the misconduct.
- Copies of letters to the employee.
- Copies of warnings.
- Notes on any evidence.
- Witness statements from the investigation.
- Any appeal documents.
People who saw what happened, the investigator, the person who chaired the disciplinary hearing, and the person who chaired the appeal hearing, should be your witnesses in the event of a tribunal.
The Acas code for reasonable behaviour
Acas has a Code of Practice that offers guidance for you and your staff. The code sets out the basic requirements of fairness and gives a minimum standard of reasonable behaviour. You can incorporate this code into your company’s policies. The code also applies to issues of grievance.