What constitutes gross misconduct?

Dismissing staff is a fraught area for employers. Rules and regulations must be strictly adhered to, and efforts must be made to be as sensitive as possible to employees during this difficult time.

However, there may be times when an employee’s behaviour is so damaging to the business or organisation that it amounts to ‘gross misconduct’. If this is the case, then the employer can dismiss the employee on the spot without giving notice. Gross misconduct dismissal only requires one instance of the damaging behaviour.

By contrast, where the misconduct is minor in nature, the employer will have to issue verbal and written warnings before dismissing the employee and will have to serve notice or pay in lieu of notice.

There is a difference between ‘firing’ someone and making them redundant. An employee can only be ‘fired’ for gross misconduct.

An employer can make an employee redundant if the job they were doing has ceased to exist or diminished. For example, if the business is closing, or changing its purpose. However, employers must be careful about whom they choose for redundancy.

A redundancy is unfair and amounts to unfair dismissal, if the person is selected for discriminatory reasons. These include that the person is a whistleblower, took parental leave, is a part-time worker, is a fixed-term worker, sought the right to be accompanied at a disciplinary hearing, or took part in trade union activities. There are several other reasons, which are listed on the Acas, the Advisory, Conciliation and Arbitration Service, website at www.acas.org.uk.

What constitutes gross misconduct?

How serious does behaviour have to be before it becomes ‘gross misconduct’?

It needs to be serious enough to break the contractual relationship between employer and employee.

Acas lists the following as examples of ‘gross misconduct’: “dishonesty, theft or fraud; malicious damage; fighting, assault on another person; serious incapability through alcohol or illegal drugs; actions which endanger employees' safety; falsification or unauthorised removal of company records or property; and a serious act of insubordination”.

Therefore, stealing from the company, deliberately damaging company property, assaulting another employee, being abusive to co-workers or clients, or endangering other’s safety by breaching health and safety rules, are all examples of employee behaviour that amount to ‘gross misconduct’.

The list, however, is not exhaustive. The situations that would amount to ‘gross misconduct’ are subjective and depend on the circumstances of the job. For example, an airline pilot found to be drinking alcohol during a flight would likely be guilty of ‘gross misconduct’, but the situation may be different for an accountant.

Care should be taken where workers are found drunk or under the influence of drugs, as they may be addicted to alcohol or drugs and therefore may be able to resolve their problems through counselling or medical treatment.

The employer should be able to prove that the decision to dismiss the employee was one that a reasonable employer would have made, and was fair and reasonable in the circumstances, and that the offence was so wrong that dismissal was an appropriate sanction.

Should the employee challenge their dismissal, an employment tribunal will be interested in whether the employer thoroughly investigated the alleged misconduct, whether alternatives were considered, whether the employee was given an opportunity to put their side of the story, and whether the employer followed all the relevant procedures.

These procedures are that the employer should undertake a thorough investigation, set out the problem in writing, offer the employee a face-to-face meeting to discuss it, give the employee an opportunity to have a witness present at the meeting, and allow the employee an opportunity to appeal.

It is very important that these procedures are properly followed, or the employer could be sued in the employment tribunal or civil courts.

Employers should keep records of all examples of gross misconduct, and should be consistent in their approach. The tribunal will not look favourably on an employer who dismisses one employee but gives another a second chance for the same mistake. It is a good idea to keep all documentary evidence, such as emails, letters, notes on any investigation and witness statements. 

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