17 Jan 2024

What is Gross Misconduct?

What is Gross Misconduct?

In any workplace, maintaining a healthy and productive environment is crucial for the success of both employees and the company as a whole. However, instances of gross misconduct can disrupt this harmony, leading to serious consequences for all parties involved. It is important that employers recognise the type of conduct that meets the threshold for gross misconduct – behaviour or action which is so serious that it justifies dismissal without notice or pay in lieu – as, if it the misconduct is not sufficiently serious to be considered gross misconduct, it could prove the basis of a claim for unfair dismissal.

During December, we have supported clients dealing with gross misconduct situations with remote advice, on-site investigations, handling disciplinary processes, communicating with individuals/ other employees and providing documentation and legal advice. With this in mind, we thought it would be timely to provide guidance for employers on how to handle such situations effectively and in this blog post, we will explore the concept of gross misconduct and its implications.

Gross misconduct & sackable offences

Gross misconduct refers to serious and unacceptable behaviour by an employee that breaches the fundamental terms of the employment contract.

When an employee’s job is terminated without a notice period or pay in lieu of notice after an episode of gross misconduct, it is known as summary dismissal. In contrast, in a typical dismissal, an employee will either be allowed to work their notice period or would be compensated for it through pay in lieu of notice (PILON).

If an employee has been continually employed for at least a month but less than two years, they are normally entitled to a minimum of one week’s notice following their dismissal. They will be entitled to two weeks’ notice if they have served for at least two years, with an extra week for each consecutive year of service, up to a total of 12 weeks. In many circumstances, however, the employment contract may provide for a longer notice time.

In circumstances when summary dismissal is justifiable, the employee will not be entitled to work out or be compensated in lieu of their statutory or contractual notice period.

The following are common circumstances that can amount to gross misconduct and may be used to justify summary dismissal.

  • Inappropriate or harmful workplace behaviour
  • Harassment or discrimination against another employee e.g. use of racist, sexist or homophobic language.
  • Workplace insubordination e.g. speaking to managers or Directors in a derogatory manner.
  • Serious violations of health and safety standards e.g. negligence leading to an accident/incident or one that could have caused a serious accident/ incident
  • Intoxication at work caused by alcohol or drugs
  • Possession of drugs or use of drugs at work
  • Purchasing or selling drugs on work premises
  • Workplace theft, fraud, or dishonesty
  • Misuse of company assets e.g. taking company property home for personal use
  • Damage to company property e.g. damage to company vehicles through reckless driving

This list of sackable offences is by no means exhaustive. An employer may have a written policy or set of regulations in place that includes restrictions against various sorts of misconduct based on their industry or business. In the finance business, for example, IT-related actions, such as disclosing a password, are frequently considered severe misconduct. In retail, misuse of discount cards and taking of waste stock are often considered Gross Misconduct. There is also a difference between genuine and honest mistakes and incidents which may be considered gross misconduct e.g. the circumstances leading up to an accident in a company vehicle might vary significantly from an unfortunate accident which couldn’t have been avoided to poor driving for which the employee might need to be held to account.

The setting in which the act occurs might also influence what constitutes gross misconduct.

In practice, it is important that each case is handled on its own merit and the facts of the matter are established via an investigation before a decision is made as to disciplinary action.

In most circumstances, a single act of gross misconduct will be enough to justify summary dismissal. However, the cumulative effect of a series of acts demonstrating a pattern of serious misbehaviour may justify dismissal without notice or compensation in lieu in some cases. Even if the employer is unable to identify a single act that constitutes gross misconduct, this can be done.

Implications for Employers

Dealing with gross misconduct is a delicate task for employers, as mishandling the situation can result in an unfair dismissal claim before a tribunal, damage to the company's reputation, and a decline in employee morale as this may cause widespread unease in the workforce. Therefore, it is essential for employers to approach such situations with sensitivity, adherence to legal guidelines, and a commitment to fair and just practices.

Key Steps for Employers:

1. Establish Clear Policies and Procedures

Ensure that your company has well-defined policies and procedures in place that explicitly outline what constitutes gross misconduct. This can help set expectations for

employees and provide a solid foundation for addressing such issues. These policies need to be clearly communicated.

2. Thorough Investigation

Before taking any disciplinary action, conduct a thorough and impartial investigation. Gather all relevant information, interview witnesses, and document the findings. This will help in making informed decisions and can serve as evidence in case of legal challenges.

3. Fair Disciplinary Process

It is crucial to follow a fair disciplinary process when addressing gross misconduct. Provide the accused employee with an opportunity to present their side of the story and ensure that any disciplinary actions are proportionate to the severity of the offense.

4. Legal Compliance

Familiarise yourself with relevant employment laws to ensure that your actions are compliant.

5. Communication

Clearly communicate the outcomes of the investigation and any disciplinary actions to the affected parties. Transparency is key to maintaining trust within the workplace.

6. Employee Support

Offer support to other employees who may have been affected by the misconduct. Create an environment where employees feel comfortable reporting such incidents and seeking assistance when needed.

7. Documentation

Keep detailed records of the entire process, from the initial report to the resolution. This documentation can be valuable in case of any legal challenges or future reference.

Effectively addressing gross misconduct in the workplace requires a careful balance of empathy, adherence to legal standards, and a commitment to maintaining a healthy work environment. By implementing clear policies, conducting thorough investigations, and following fair disciplinary procedures, employers can navigate these challenging situations with integrity and professionalism which ensuring that unsuitable employees depart the organisation in the most appropriate way.

If you find yourself grappling with issues related to gross misconduct, employee relations, or simply seeking guidance on fostering a healthier workplace, our dedicated support team at The HR Branch is here for you.

Feel free to reach out to us at info@thehrbranch.co.uk or give us a call on 01522 275105. Our experienced consultants are ready to listen, understand your unique situation, and provide the support and solutions you need.