What constitutes gross misconduct?

If you have done something at work which is so damaging to your employer’s business or organisation that it amounts to “gross misconduct”, your employer can dismiss you without giving you any warnings or notice.

Gross misconduct dismissal only requires one instance of the damaging behaviour, but your conduct needs to be serious enough to effectively break the contractual relationship between you and your employer.

Examples of gross misconduct

Acas lists the following as examples of gross misconduct:

• “dishonesty, theft or fraud;
• malicious damage;
• fighting or 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”.

The list, however, is not exhaustive. What would amount to gross misconduct is subjective and depends 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. Your company should list examples of what it feels is gross misconduct in its company handbook.

Gross misconduct dismissal procedure

If your employer thinks you are guilty of gross misconduct they must be able to prove that:

• the decision to dismiss you was one that a reasonable employer would have made; and
• was fair and reasonable in the circumstances; and
• that the offence was so grave that dismissal was an appropriate sanction.

To establish these elements, your employer should:

1. Tell you that they suspect you of gross misconduct and that you face the sack if the case against you is proved.
2. 2. Undertake a thorough investigation to establish the facts. This is required under the Acas code of practice, which all employers must follow when dealing with gross misconduct.
   
   (Note: Your employer may suspend you 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 its part).
3. Offer you a face-to-face meeting to put your case and hear the evidence against you before deciding whether to take action. They should ensure that you are given reasonable time to prepare for this meeting.
4. Allow you to bring a friend or colleague to the meeting.

If your employer decides that the case is made out against you and decides to dismiss you, they must set out in writing:

1. the alleged misconduct which has led to the dismissal;
2. provide you with the reasons for thinking at the time of the dismissal that you were guilty of the alleged misconduct; and
3. your right of appeal against dismissal.

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

Appeal process

If you wish to appeal against your dismissal, you must inform your employer. The employer must then:

1. Invite you to attend a meeting. You must take all reasonable steps to attend this meeting. The employer must call the meeting within a reasonable time but allow you enough time to prepare.
2. Give you the opportunity to be accompanied at the appeal meeting by a friend or colleague, who will provide support.
3. Allocate a more senior manager, where possible, to deal with the appeal than the one who dismissed you.
4. Inform you of their final decision.

Employment tribunal

You can bring a claim for unfair dismissal at an employment tribunal if:

• You have worked for your employer for more than one year; and
• Your employer did not follow the above procedures; or
• you feel you were unfairly accused of the gross misconduct.

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.

Getting legal advice

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Useful Articles

Overview of Employment rights (business)
Gross misconduct or being fired
Choosing an employment lawyer
Termination of employment contracts