Gross Misconduct in the Workplace

Gross misconduct refers to unacceptable behaviour by an employee that is considered to be so serious that it breaches the root of the employment contract and destructs the relationship between an employer and their member of staff. The behaviour must be demonstrated to have been deliberate or must be the equivalent of gross negligence, and this then entitles the employer to end the employment of the individual with immediate effect and also without the need to provide notice.

The following article explains gross misconduct more thoroughly, detailing the types of behaviour that constitute this definition, the authority that the employer has and how an employee can respond if they are dismissed due to gross misconduct without fair cause.

Behaviours that Constitute Gross Misconduct

Some of the most common examples of behaviours that amount to gross misconduct include:

• Theft from the business
• Dishonesty
• Assault on a colleague, the employer or fighting on the premises
• Malicious damage
• Gross negligence
• Drug or alcohol use that impairs the employee's ability to complete their duties
• Acts that pose dangers to others in the workplace
• Serious acts of insubordination.

The acts that will be considered as gross misconduct should be outlined in the contract of employment or the company handbook and the employer can determine this dependent upon the role of the employee. By outlining the terms of gross misconduct in the employee contract, the employer secures some protection for themselves should a claim be brought against them in the future as they can demonstrate that they identified the types of behaviour that would be considered as unacceptable from the outset.

Processes that the Employer Must Follow

Employers are legally bound or recommended to follow certain processes with regards to disciplinary procedures as per the terms of the ACAS code of practice. This includes the recommendation for an employer to investigate every allegation of gross misconduct and allow the employee the chance to respond to allegations. The employee will be entitled to attend meetings regarding allegations with the company of a colleague or a representative of the employee's trade union.

If the employer decides that they want to dismiss the employee, they must demonstrate that this action is "reasonable and proportionate". It may be that the employer can take alternative measures such as demoting the employee or issuing a final warning. In several cases, the employer will choose to suspend the employee involved whilst they investigate the matter fully. The suspension should be paid and only last for as long as the investigation takes. The suspension will be legal if the employer can prove that there would otherwise be a risk to the business. If this can not be proven, the employer may be in breach of their legal obligations to employee rights.

The employee is entitled to appeal a decision of dismissal, and this may result in the case being brought before an employment tribunal.

Employment Tribunals and Gross Misconduct Cases

An employment tribunal will analyse each case presented to them and will have the responsibility of determining whether gross misconduct occurred. To do this, they will consider factors such as:

• Whether the employer genuinely believed that the employee was guilty of gross misconduct
• Whether this belief was fair and reasonable
• Was the case properly investigated by the employer
• Was an adequate disciplinary meeting undertaken?
• Was the employee given sufficient notice relating to the disciplinary meeting?
• Was the employee afforded the opportunity to state their case?
• Did the employer follow their own procedures and disciplinary processes
• Whether previous similar cases were dealt with by the employer in the same way.

Are employers obliged to dismiss employees following proven gross misconduct?

An employer does not necessarily have to dismiss an employee based on proven gross misconduct. The employer may establish more appropriate or lenient measures in order to address the problem such as demotion or final warnings.

Is it wise for an employee to resign instead of being dismissed?

Some employees opt to resign rather than face dismissal following an allegation of gross misconduct. This may be to prevent disciplinary action being brought against them or because they admit fault. The employee should ensure that the allegations made against them are just before deciding to resign as any future claim made against the employer is likely to be more difficult to prove if the employee chose to leave.