An employer’s guide to gross misconduct

Are you considering taking action against an employee, more specifically, dismissing them without notice? When it comes to instant dismissal, if you’re not sure where you stand as an employer, you could end up with an employment tribunal on your hands which can be very stressful and time-consuming to deal with.

We know terminating contracts can be extremely challenging to face for both employers and employees but if your policies are clearly outlined in your handbooks and contracts of employment, everyone should know where they stand.

Certain acts and behaviours – otherwise known as gross misconduct – allow you to instantly dismiss an employee without notice.

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What is gross misconduct?

Gross misconduct is an act that is so serious it warrants immediate dismissal, without notice, for a first-time offense. There are very specific acts that constitute gross misconduct, and these include:

  • theft
  • physical violence
  • gross negligence
  • fraud
  • accessing illegal images on business IT
  • harassment
  • breaching Health & Safety rules
  • deliberate damage to business property
  • failing to follow reasonable management instructions

This kind of behaviour can incur huge costs for your business and even damage your relationships with clients, customers, and service users, and breaks down trust between you and your employee.

How is it different to misconduct?

Gross misconduct is serious enough to dismiss an employee straight away, whereas misconduct is a less serious offence, and only warrants a warning.

Examples of misconduct are:

  • Lateness
  • Standards of work are below what’s expected
  • Rudeness towards clients, members of the public, or other employees
  • Unauthorized use of computer equipment, email, and internet

All of the above points can be worked on if you take the right disciplinary procedures which might involve verbal warnings, holding an investigation, etc.

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Following a fair dismissal procedure

Before you make the decision to dismiss an employee, you must follow a fair dismissal process. Here are the eight fundamental considerations to follow:

  1. Ensure you conduct a thorough investigation first and keep a paper trail of written records throughout the process, so you can provide evidence that you’ve followed a fair process.
  2. Consider whether it’s appropriate to suspend the employee. This could be done where, for example, the employee is going to continue working in the area that it is alleged the Gross Misconduct occurred and there is no appropriate alternative work they could do in the meantime.
  3. Don’t base your dismissal on discriminatory grounds. This includes any protected status under the Equality Act, including an employee’s age, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation or disability.
  4. Hold your disciplinary hearing as soon as is reasonably possible so you address the issue straight away.
  5. Before the hearing, make sure you let the employee know – in a written statement – what the allegation against them is, provide them with copies of any evidence against them and confirm possible consequences. Also make sure they know the date, time and venue of the hearing so they have time to assess the situation and prepare for the hearing.
  6. Make sure your employee knows that they have a right to be accompanied during the disciplinary hearing – this could be by a colleague or a union rep.
  7. During the hearing, let the employee put their case forward, respond to your allegations, ask questions and present their own evidence.  Don’t make any decision prior to the hearing when they have not had the chance to present their version of events.
  8. Allow your employee to appeal your decision if they think it’s unfair. They have this right regardless of the decision or case so make sure a senior, appointed member of the team deals with the appeal promptly and impartially.
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