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.
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The questions answered in this post are:
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. What is Gross Misconduct?
There is no set legal definition of what constitutes gross misconduct.
The Acas Disciplinary Guide explains that there are some actions that employees can take that are very serious or have very serious effects, and it is these that are deemed to be gross misconduct.
The examples Acas gives are acts of fraud, physical violence, gross negligence (serious lack of care) in their duties or other people, or serious insubordination.
All behaviour that is obscene, racist, sexist, discriminatory or harassing in nature would also typically be considered as being gross misconduct.
Typically, a business will define what it deems to be gross misconduct in their disciplinary policy. There is usually a list which will include the Acas examples, but it can also contain other items that are specific to the business.
What Are the Implications of Gross Misconduct (As Opposed to Misconduct)?
The reason that it is important to determine whether an action is gross misconduct is that, when gross misconduct is proven through an investigation and disciplinary process, the employer is able to terminate employment with immediate effect and there is no obligation to pay notice.
2. What Is the Correct Procedure for Dealing With Gross Misconduct?
If you’re faced with a case of potential gross misconduct then you need to follow the appropriate process.
The situation may be such that this seems completely unnecessary but it’s vital that you follow the correct process otherwise you run the risk of the dismissal being found to be unfair.
The correct process for a potential gross misconduct is:
But isn’t the first step to suspend the employee?
3. When Should an Employee Be Suspended?
Whether or not to suspend an employee will be based entirely on the circumstances of the case.
Historically, suspension was deemed to be a “neutral act”. However, there have been a number of cases since 2017 that have made it clear that this is not always the case and determined that suspension should only be actioned where there is no alternative.
If you do decide to suspend an employee, even in a case of gross misconduct, you need to ensure that this is justified. Therefore, before you suspend an employee, you need to make an assessment on whether suspension is appropriate.
Suspension is likely to be appropriate if the individual remaining in the place of work presents a risk to others or the business itself, or if them being in the workplace may prevent the employer from conducting the investigation.
As suspension is not a neutral act, you should consider whether there is an alternative to suspension. As an example, if you suspect an employee who has access to money has been stealing, consider whether they could be moved to a role where they do not have such access to money whilst you conduct the investigation.
4. Should You Dismiss for Gross Misconduct?
You’ve carried out an investigation and gone through the disciplinary process and it’s clear that the employee did commit an act of gross misconduct. So, should you dismiss it?
Typically, if the employer has gone through the appropriate process and the decision is that the employee committed an act of gross misconduct as defined in the company’s disciplinary policy, then that employee should be dismissed.
However, if you find yourself thinking “that doesn’t seem to be the right thing to do”, then you need to ask yourself why you are thinking that way.
Is It Too Draconian?
It could be that you feel dismissal is too draconian for the incident that has occurred.
If so, it’s likely that policy is incorrect, i.e. the offence that has been listed as gross misconduct is not really gross misconduct.
In this case, the policy should be updated to reflect this and the particular offence can be downgraded to be “misconduct”, with the sanction being a written warning of some nature.
Are There Mitigating Factors?
Alternatively, you may conclude that the action itself does amount to gross misconduct, but the reason that you’re thinking dismissal is not the right outcome is that through the process you have become aware of mitigating factors that you would like to take into consideration.
Examples of mitigating factors are:
- Does the action they have taken seem counter to their usual behaviour? For example, if they tell you the reason that they hit their co-worker was because the co-worker was being racially abusive towards them you may want to be more lenient.
- 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 want to issue a lesser sanction.
- Avoiding a disproportionate impact on the employee. Do the repercussions of the dismissal make the dismissal disproportionate? (See inset for an example of this).
Disproportionate impact of dismissal 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 key thing to remember is that consistency in applying sanctions for gross misconduct is essential. If an employee has retained their employment in similar circumstances previously, then you would find it difficult to justify dismissal.
5. Support for Dealing with Gross Misconduct
It is essential that employers make appropriate considerations before deciding to terminate employment in a case of gross misconduct.
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.