Can you dismiss an employee on the spot for gross misconduct?

  • Employee Conduct
woman in meeting with head in hands
Kate Palmer FCIPD - Director of HR Advice and Consultancy at global employment law consultancy, Peninsula.

Kate Palmer, HR Advice and Consultancy Director

(Last updated )

Under new plans, any officer who commits gross misconduct could face automatic dismissal.

In a bid to reform the policing system, the government is suggesting that dismissal should be the outcome of any gross misconduct. That’s instead of first considering a less severe sanction as current guidance suggests. Because otherwise, it may mean officers can keep their jobs even if they commit serious acts of misconduct.

They also want to double down on vetting processes, so officers who fail a vetting check could also lose their jobs.

The crimes of convicted former police officers Wayne Couzens and David Carrick shocked the nation. And cases like this give us a lot to think about. Like, how should you behave if any of your staff commit gross misconduct and criminal acts? And is there any way to prevent this from happening?

Well, first let’s define what actually counts as gross misconduct…

Misconduct is essentially bad behaviour. And sometimes, an employee may be guilty of misconduct if they keep turning up for work late, they miss deadlines, or make constant mistakes.

Usually, you can help resolve minor issues of misconduct informally. And in cases where you can’t, you should follow a disciplinary procedure in line with your company policy and the ACAS code of practice.

If your employee has a conduct issue, you have to give them warnings (verbally and written as the next stage) before considering dismissal. But if an employee commits a serious offence, this counts as gross misconduct. So, you can dismiss them without notice or any previous warnings.

You may do this if your employee commits:

  • Theft or fraud.
  • Physical violence.
  • Discrimination or harassment.
  • A serious health & safety breach.
  • An act of bribery.

The above are a few typical examples, but there is a long list of what could count as gross misconduct at work – which may vary from business to business.

What should you do if you think your employee is guilty of gross misconduct?

If your employee is facing an allegation of gross misconduct, you should investigate. You may have reason to believe that they did it. But you still need to carry out a full investigation and disciplinary process before you take any action.

If you’re able to, get someone who isn’t involved to lead the investigation.

Then as part of your investigation, try to collect as much evidence as you can. This might involve looking at CCTV footage, emails, and interviewing witnesses. You can learn more about carrying out a disciplinary investigation here.

Consider whether the circumstances are appropriate first. But it may be wise to suspend your employee while you investigate. In serious cases, this may be the best move. In other cases, it may be more appropriate to move them to a different department and give them alternative job responsibilities.

It’s important to investigate thoroughly, particularly in a case of gross misconduct that could end in dismissal. You may find evidence that proves gross misconduct happened or you might not.

But if you want to dismiss your employee on those grounds, you must have evidence to prove on the balance of probabilities that the incident happened. In other words, there must be evidence to show the allegation is ‘more likely than not’ to have happened.

Because let’s say your employee denies the allegations and the evidence isn’t clear. If you choose to go ahead and dismiss them, you could be vulnerable to costly claims.

What if the police are investigating your employee?

Say the police are investigating your employee over a criminal allegation. This shouldn’t stop you from carrying out your own separate investigation (unless the police say otherwise).

If your employee is facing court and prison time, you don’t have to wait for a guilty verdict before you make a decision about their employment. If they’re going on trial, you could be waiting for this for a very long time (especially if they’re charged with a serious offence).

You should move forward with your investigation regardless. Review all your evidence and make an objective decision on your employee’s fate based on the information you have to hand.

Can you dismiss your employee on the spot if you find them guilty of gross misconduct?

After your investigation, if you find your employee guilty of gross misconduct, invite them to a disciplinary hearing.

This should be led by someone senior who isn’t already involved. You should provide notice of this hearing and allow your employee to be accompanied if they wish.

Before this hearing, you should present all the evidence you’ve collected in your investigation. And during the disciplinary hearing, you should give your employee an opportunity to give their side.

As long as you have followed a full and fair disciplinary process, you can safely end the working relationship with immediate effect. Even if your employee raises an unfair dismissal claim, you’re protected as long as you can prove you took all the right steps.

You should also draft a gross misconduct dismissal letter to send to your employee and keep a record of this on file. You may need it if they want to make a claim against you.

What if you dismiss your employee and they want to challenge your decision?

If you dismiss your employee for gross misconduct, you have to give them the right to appeal your decision. If you don’t and your employee raises a claim against you, it could harm your case.

They should make their appeal in writing and you should arrange for an appeal hearing as soon as possible.

As long as you can show you followed procedure and can justify why you had no choice but to dismiss your employee, you should be safe from legal risk.

Can you prevent gross misconduct from happening?

Whilst you may not be able to prevent gross misconduct, you can take steps to help reduce the risk of it happening.

First, make sure your documents are in order.

You should have a robust disciplinary policy that defines what gross misconduct is and gives examples. It should outline the consequences for staff who behave out of line. It should also explain your process for handling cases and how employees can appeal your decision.

You should also provide a section on gross misconduct in your employee handbook and make sure your staff all have easy access to it.

By telling your staff in writing, you can help set expectations and rules around behaviour at work.

You can read more about the different types of employee misconduct and how to manage it here. Or for help with your paperwork, get expert documentation support here.

Or, if you’d like to speak to someone about a staff issue in your workplace, just tap below to give us a call. One of our HR experts would be happy to help.

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