Gross misconduct is an action or course of conduct performed by an employee that is deemed so reprehensible that summary dismissal is justified. Such conduct can often make a continuing relationship between employee and employer impossible and in such circumstances notice is not necessary, nor pay in lieu of notice.
Summary dismissal is not instant dismissal
A common mistake by employers is to believe that if the employee behaves so badly that the facts are unarguable, such as being caught fighting or in the act of theft, that dismissal can take place literally on the spot. Emotions can run very high but a cool head is needed – the employee is still entitled to have procedure followed if they have been employed for more than a year, so dismissal must wait – the correct thing to do is to suspend the employee. Failure to follow procedure, however reprehensible the employee’s behaviour, is likely to constitute unfair dismissal. The employee should also be given the right to appeal ant dismissal, with appropriate process followed.
The types of conduct which amount to gross misconduct
There are no definitive national guidelines outlining the line which cannot be crossed. What amounts to gross misconduct is a question which will be answered differently by different employers.
An employment contract should outline the sorts of behaviour which will not be tolerated at work. This will of course depend on the employer themselves but also the nature of the work and the type of workplace. The test, in terms of the actions, is whether the employer is acting within a “range of reasonable responses”. In common sense terms, a good way to think of the behaviour is, does it go to the very heart of the employment relationship, so as to irrevocably destroy any trust and confidence on the employer’s part. Consistency of approach and compliance with the latest ACAS disciplinary guidelines are also important. However most employers would agree that the following things are likely to amount to gross misconduct:
The decision to dismiss
If an employer takes the decision to instantly dismiss an employee for gross misconduct they must stand by that decision and be able to justify it. Because there is no concrete definition of gross misconduct it is the decision of the employer to find it has occurred but that decision is reviewable by the Employment Tribunal. If an employee feels they have been wronged by the decision to dismiss they may take their employer to tribunal and claim damages if the decision was wrong. At tribunal the employer will have to justify that the instant dismissal was:
Fair – this is the procedural issue and requires analysis of the conduct alleged. It should be shown that the incident was investigated and satisfactory proof was found of the misconduct and for the employee to be advised and have an opportunity to contest any allegations in a formal disciplinary process. It is favourable to an employer if the type of conduct was set out in an employment contract or training book, as gross misconduct. It is clearly fairer for an appeal process to be established and for an employee to have use of the appeal process
Reasonable – The nature and gravity of the offending behaviour is looked at here. The tribunal will ask whether the conduct was so bad as to destroy the relationship between employer and employee or did it merely cause annoyance. If the conduct was relatively minor, such as poor timekeeping, it may be deemed unreasonable for the employer to plump straight for instant dismissal without considering other sanctions.
A case by case basis
Each case is unique and it is advisable to treat them as such. Holding a hearing where an employee is represented by a trade union representative or lawyer will give them the chance to put forward any defence or mitigation to the conduct alleged. This, coupled with an appeal process should stamp out any claim that the process is not fair. Written reasons for summary dismissals are also required to rebut any allegations of discrimination due to different punishments as a result of certain mitigation. [/note_block]