Gross misconduct or being fired

Gross misconduct is behaviour in the workplace which is so serious that it warrants dismissal for a first offence without notice or pay in lieu of notice.

What constitutes gross misconduct can vary depending on your job – smoking in a non-smoking area might warrant a slap on the wrist in some jobs, for example, but for an oil worker to smoke on an oil rig, this would almost certainly amount to gross misconduct.

Common examples of gross misconduct include assault, downloading pornography, theft, misusing confidential information, or arson – basically it’s anything that is so bad that it destroys the employer/employee relationship.

Examples of what your company regards as gross misconduct and grounds for dismissal could appear in your employment contract and/ or the disciplinary section of your company handbook, but just because drinking vodka naked on your boss’s desk isn’t listed in there, doesn’t mean to say you won’t get sacked for it.

Often the decision as to whether it is gross misconduct and your employers were justified in firing you will come down to whether they can show that their decision was one that would be one that a reasonable employer would have made and that it was fair and reasonable in the circumstances.

If your employers intend to dismiss you for gross misconduct, they must first establish the facts. This is a requirement of the Acas code of practice, which all employers must follow when dealing with gross misconduct.

They may suspend you for a short period with full pay while they establish the facts, but must make it clear that this suspension is not a disciplinary action and does not involve any pre-judgment on their part.

Your employer should give you an opportunity to put your case at a disciplinary meeting before deciding whether to take action. However, in some exceptional cases, this may not be necessary.

Under the Acas code of practice, the dismissal will be found to be automatically unfair if the employer does not adhere to the following procedure.

The employer must set out in writing: the alleged misconduct which has led to the dismissal; the reasons for thinking at the time of the dismissal that you were guilty of the alleged misconduct; and your right of appeal against dismissal.

A copy of this written statement must be sent to you.

If you wish to appeal, you must inform your employer. The employer must then invite you to attend a meeting. You must take all reasonable steps to attend this meeting.

You have a right to be accompanied at the appeal meeting by a friend or colleague, who will provide support. The appeal should be dealt with by a more senior manager, where possible, than the one who dismissed you.

After the meeting, your employer will inform you of their final decision.

If your employer does not follow this procedure, this will be taken into account by an employment tribunal if you subsequently bring a claim for unfair dismissal.

You can claim for unfair dismissal if you have worked for your employers for more than a year and you feel they failed to follow this procedure, or that you have been unfairly accused.

Issues the employment tribunal will consider in deciding if your dismissal was justified include whether:

• your employers genuinely believed in your guilt and it was reasonable for them to believe this;
• the alleged offence was thoroughly investigated;
• you were shown all the evidence against you;
• you were given the chance to state your case;
• you were allowed to take someone with you to the disciplinary meeting;
• you had enough time to prepare for the disciplinary meeting;
• you were told you faced the sack;
• alternatives to dismissal were considered;
• you were told of your right to appeal.

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Useful articles

Overview of Employment rights (personal)
What constitutes Gross misconduct?
Choosing an employment lawyer
Termination of employment contracts