Can and Should You Always Dismiss the Employee for Gross Misconduct?

Guidance for Employers

Gross Misconduct

Can and Should You Always Dismiss the Employee?

Many employers have a list of behaviours in their employee disciplinary policy that constitute gross misconduct. If an employee commits one of these ‘crimes’ then the outcome is clear, right? Well, not necessarily. This post sets out the process and considerations that you need to make before dismissing an employee on the grounds of gross misconduct.

Gross Misconduct

Can and Should You Always Dismiss the Employee?

17 May, 2021

by Lianne Lambert

Many employers have a list of behaviours in their employee disciplinary policy that constitute gross misconduct.

If an employee commits one of these ‘crimes’ then the outcome is clear: their employment is terminated without notice as what they have done is so serious that it makes their continued employment impossible.

In many cases this may be true but it isn’t always the case and it’s worth reminding yourself of the correct process to follow when dealing with a case of gross misconduct and the things that you should consider before reaching a decision to end the employment of the individual.

You need to consider all of the facts in cases of gross misconduct and not just reach a decision based on the incident in isolation.

1. Correct Procedure when Dealing with Gross Misconduct

There are times when an employee does something that’s so serious that sacking them on the spot seems to be completely justified.  This isn’t, however, something you should do under ANY circumstances.

Step 1 – Investigate

If you’re faced with a case of potential gross misconduct then your first step is to investigate. The situation may be such that this seems completely unnecessary but it’s vital that you follow correct procedure otherwise you run the risk of the dismissal being found to be unfair.

Isn’t the first step to suspend the employee?

No.

It always used to be the case that, if you believed an employee had committed an act of gross misconduct, your first step was to suspend them whilst you investigated. It was deemed to be important to suspend them as soon as the act came to light. The logic was that, if someone had done something so serious that it may result in the termination of their employment without notice then, they presented such a significant risk to your business that you needed to take action immediately. The position here has now changed significantly.

In years past, suspension was deemed to be “a neutral act” and it was done to allow a thorough investigation to take place whilst ensuring that any business risk was managed. However, this was challenged in the case Agoreyo v. London Borough of Lambeth 2017 and in the appeal hearing for the above case, the High Court found that suspension was not “a neutral act” and that it can breach the implied term of trust and confidence between employee and employer and lead to a claim of constructive dismissal.

Therefore, before you decide to suspend an employee, even in a case of gross misconduct, you need to ensure that this is justified and you need to communicate clearly to the employee why you feel there is a need to suspend. You should also consider whether there is an alternative to suspension. As an example, if you suspect an employee who has access to money has been stealing, could you move them to a role where they do not have such access whilst you conduct the investigation? If you need any guidance on whether it would be appropriate to suspend an employee then do give us a call on 0203 319 1649 and we can talk you through the options.

Start the Disciplinary Process after Investigation

Having conducted your investigation, if you conclude that there is a case to answer then you’ll move ahead with your disciplinary process. You’ll write and invite the employee to a hearing, inform them of their right to be accompanied and provide them with any evidence that you’ll be taking into consideration in your decision making process. You’ll then conduct the hearing, listen to all that the employee has to say and then comes the tricky bit – you need to decide whether you can safely dismiss on the grounds of gross misconduct.

2. Considering an Appropriate Response

You’ve carried out an investigation and gone through the disciplinary policy and it’s clear that the employee did commit an act of gross misconduct.  So, can you dismiss?

This is where you need to be cautious and you need to consider whether dismissal is a reasonable response.  You certainly shouldn’t assume that you are safe to dismiss just because the employee has committed an act of gross misconduct and your policy says that you can!

When deciding whether dismissal is a reasonable response you need to consider the following points:

  • Any explanation given by the employee including any mitigating factors they have raised. Does this seem counter to their usual behaviour? For example, if they tell you that the reason they hit their co-worker was because the co-worker was being racially abusive towards them you may need to question whether you have solid grounds for dismissal.
  • Previous disciplinary record and normal conduct. If the employee is usually an excellent performer, has a long and unblemished record with the company and the act is out of character, again you may not have solid grounds.
  • Consistency in applying sanctions for gross misconduct.  If an employee has not been dismissed in similar circumstances previously then you would find it difficult to justify dismissal.
  • Appropriateness of the sanction. As with all disciplinary decisions you need to consider whether a lesser sanction would be more appropriate.
  • Avoiding a disproportionate impact on the employee. Do the repercussions of the dismissal make the dismissal disproportionate? This is something that was argued in the case Brito-Babapulle v Ealing Hospital NHS Trust.  Brito-Babapulle was dismissed for gross misconduct following a long and-issue free career with the NHS.  Brito-Babapulle was dismissed for undertaking private work whilst being signed off sick and receiving full pay from Ealing NHS Trust. The legal team argued that the dismissal would have a disproportionate impact on the employee as it would seriously hinder the chances of Brito-Babapulle securing a new role with the NHS and this, in turn, could mean that she was unable to remain in the UK.

The Brito-Babapulle case offers useful guidance to employers around the considerations you need to make before deciding to terminate employment in a case of gross misconduct. It also makes it clear that you should document and explain your thought processes to the employee and we’d suggest doing this in the outcome letter. By doing this should the need arise, you will be able to demonstrate that you gave the issues some consideration before reaching your decision.

3. Support with Gross Misconduct Cases

We hope the message is clear: You need to consider all of the facts in cases of gross misconduct and not just reach a decision based on the incident in isolation.

We hope this post has provided you with some useful information on dealing with gross misconduct. 

If you do have a case that you’d like to discuss then give us a call on 0203 319 1649 and speak with one of our consultants.  Alternatively, you can contact us using our contact form and one of our consultants will be in touch within a couple of hours.

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