Gross misconduct - Advice for employers

Alan Price – CEO at BrightHR

February 15 2016

Gross misconduct is an act so serious that it warrants a summary dismissal without notice – even at first offence. Because of this, there’s some confusion as to the procedure: do you simply dismiss them immediately, or do you need to take certain steps first?

Here’s our guide to getting it right. Firstly, let’s make one thing clear. Despite the ‘immediate’ nature of a gross misconduct dismissal, it’s still an outcome of the disciplinary procedure – so you need to follow the same steps as you would for any other disciplinary.

When an allegation is made, you still need to conduct a fair investigation to establish all the facts, and then if gross misconduct is identified, a dismissal without notice may be a reasonable response.

What’s the procedure?

  • Essentially, you need to follow your usual disciplinary procedure and comply with any time limits outlined in there. Here’s some advice and guidance for dealing with the matter appropriately:
  • Send invitations to and hold investigation meetings with any witnesses, as well as, the employee who has committed the alleged act.
  • Present the employee with the allegations and allow them a chance to have their case heard at a disciplinary hearing, giving them appropriate notice.
  • As gross misconduct actions are often very serious, it may be appropriate to suspend the employee on contractual pay, and only call them in for an investigation hearing, and again later for a disciplinary hearing.
  • Although gross misconduct may make it impossible for you to have an employment relationship with that employee, they must be allowed the ‘right to appeal’ the employer’s decision of dismissal, and the decision maker at the appeal hearing must have the power to uphold or overturn the decision and reinstate them if necessary.
  • An employer should always follow a fair procedure and hold a fair hearing, otherwise they may place themselves open to an employment tribunal claim.

What constitutes gross misconduct? Acts of gross misconduct vary from industry to industry, because an act which constitutes gross misconduct in one occupation may be acceptable in another, depending on the level of gravity.

The employer’s disciplinary procedure and employee handbook should provide examples of gross misconduct relevant to the company and industry. These might include things such as:

  • Theft.
  • Violence.
  • Gross negligence.
  • Criminal acts.
  • Alcohol or illegal drugs use.
  • Serious insubordination.
  • Any act which may put the employee or others at serious risk.

This list is not exhaustive, so you need to allow for other, unforeseen circumstances that might arise.

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