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Gross Misconduct
Gross Misconduct

Can You Always Dismiss
the Employee?

Can You Always Dismiss the Employee?

Many employers have a list of behaviours in their 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 there have been some recent tribunal decisions that cast doubt as to whether dismissal in the case of gross misconduct is always going to be deemed acceptable.

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.

If you’re faced with a case of potential gross misconduct then your first step is to suspend the employee on full pay and send them home whilst you 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 unfair.

It’s also very important that, if you do suspect gross misconduct, you do not allow the employee to continue to work.  It’s very difficult to justify your decision to dismiss on the grounds of gross misconduct if you’ve allowed the employee to continue working in your business after you’ve become aware of an issue.

Once suspended, you’ll then follow your disciplinary policy.  (We won’t got into the full disciplinary process here but do drop us an email or call us on 0203 319 1649 if you’d like any guidance or if you don’t have a disciplinary policy in place).

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 is currently being 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.  The legal team have argued that the dismissal 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.

You need to document your thought processes in relation to the above points so that, should the need arise, you’re able to demonstrate that you gave the issues some consideration before reaching your decision.

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 advisers.  Alternatively, you can contact us using our email contact form and one of our advisers will be in touch.