If you have been sacked for gross misconduct, you may have a claim for Unfair Dismissal in the Employment Tribunal. Please read on to find out more.
What Is Gross Misconduct?
There is no set definition of gross misconduct, as it often depends on the facts of each individual case and each particular employer.
The ACAS Code of Practice on Disciplinary and Grievance Procedures describes acts of gross misconduct as “so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence.”
Your employer may have their own list of acts deemed as gross misconduct in their Employee Handbook or Disciplinary Policy. However, common examples of gross misconduct include:
- Physical violence
- Sexual harassment
- Deliberate vandalisation or damage to company property
I Have Been Dismissed For Gross Misconduct – What Should I Do?
If you have been dismissed for gross misconduct, and you believe the reason for your dismissal was unfair and/or your employer did not follow the correct disciplinary procedure (please see below), it is very important you appeal the decision.
If you do not appeal, any decision will be part of your personnel record and these decisions cannot be challenged internally months after your dismissal. Also, if you are dismissed and your claim is determined by an Employment Tribunal (as below), an Employment Tribunal Judge will expect you to have exhausted all internal appeals and can reduce your compensation if you have failed to do so.
For more information about how to appeal against your dismissal, please see our blog here – https://lincslaw.co.uk/blog/i-have-been-dismissed-for-gross-misconduct-what-should-i-say-in-my-appeal/
Can You Claim Unfair Dismissal If You Have Been Sacked For Gross Misconduct?
The short answer is, potentially yes!
Generally, you need at least two years’ service with your employer to bring a claim of Unfair Dismissal at the Employment Tribunal. There are, however, limited exceptions to this rule. For more information about this, please see our blog here – https://lincslaw.co.uk/blog/unfair-dismissal-less-than-two-years-service/
If you have at least two years’ service with your employer or one of the exceptions (as above) applies, you may have a potential claim for Unfair Dismissal in the Employment Tribunal.
What Is A Claim For Unfair Dismissal?
The term “unfair dismissal” can be a little misleading as it suggests the Employment Tribunal will be simply considering whether the dismissal was generally fair using the normal definitions of fairness and unfairness. In fact, a claim of Unfair Dismissal has specific legal tests which the Employment Tribunal must apply in deciding whether to uphold your claim. In a claim of Unfair Dismissal, the burden would be on your employer to prove to the Employment Tribunal that:
- They had a potentially fair reason to dismiss you; and
- In the circumstances, it was reasonable to dismiss you.
Each of the points above are addressed below.
1. Did Your Employer Have a Potentially Fair Reason To Dismiss You?
Under the Employment Rights Act 1996, there are five potentially fair reasons for dismissing an employee. These are:
- Capability (including performance)
- Illegality (i.e., you could not continue to work in the position without contravention of a statute)
- Some Other Substantial Reason (for example, a personality clash).
As above, one potentially fair reason for dismissing an employee is on the grounds of conduct which, of course, includes gross misconduct.
To rely on this reason, your employer would need to prove that your conduct was, in fact, the reason for your dismissal (for example, that it was not used as a front for a different reason) and that they had a justifiable and genuine belief that you had committed acts of misconduct or gross misconduct.
2. In The Circumstances, Did Your Employer Act Reasonably in Dismissing You?
Even if your employer can identify a potentially fair reason for your dismissal, this does not necessarily mean the dismissal was, in fact, fair. For a claim of Unfair Dismissal, the Employment Tribunal would then look at the reasonableness of the dismissal. The Employment Tribunal would consider if your employer’s decision to dismiss you falls within the “band of reasonable responses”. In essence, whether a reasonable employer could have made the same decision.
As part of this consideration, an Employment Tribunal would consider the following:
(i) Did Your Employer Follow a Fair Disciplinary Procedure?
Even if you have been dismissed for gross misconduct, your employer should have still followed a fair disciplinary procedure. Your employer should have followed their own disciplinary procedure (if they have one) and, in any event, adhered to the ACAS Code on Disciplinary and Grievance Procedures. This sets out the minimum standard expected of an employer when dealing with disciplinary proceedings.
Essentially, your employer should have:
- Investigated the allegations against you to establish the facts of the case (which may, or may not, have included holding an investigation meeting with you); and
- Informed you about the problem, provided you with sufficient information about the alleged misconduct, and explained the possible outcomes of the disciplinary hearing; and
- Invited you to a disciplinary hearing; and
- Allowed you to be accompanied at the disciplinary hearing (for more information about this, please see our blog here – https://lincslaw.co.uk/blog/who-can-i-take-with-me-to-my-disciplinary-hearing/ ) ; and
- Decided on the appropriate action; and
- Informed you of the outcome in writing; and
- Provided you with an opportunity to appeal the outcome (as above).
If your employer did not follow a fair disciplinary procedure before dismissing you, as above, you may have a potential claim for Unfair Dismissal in the Employment Tribunal.
(ii) Was Dismissal A Reasonable Sanction?
If the allegations against you were found proved, your employer should have also considered the full range of disciplinary sanctions available to them (for example, a First Written Warning or Final Written Warning), not just dismissal.
Your employer should have also considered any mitigating factors, as this would potentially impact the reasonableness of your dismissal. For example, common mitigating factors include:
- Your length of service
- Your disciplinary record
- The context of the act(s) of gross misconduct.
However, as above, in circumstances of gross misconduct, the act may be so serious that, despite your mitigating factors, it calls for dismissal without notice for a first offence.
(iii) Did Your Employer Act Consistently?
In deciding to dismiss you, your employer should have also acted consistently. For example, if your employer decided not to dismiss (or decided not to even investigate) another employee for similar acts of gross misconduct, your employer may struggle to defend a claim of Unfair Dismissal.
Unfair Dismissal – Time Limits
If you have been dismissed for gross misconduct and you wish to pursue a claim in the Employment Tribunal, it is very important that you are aware of the relevant time limits.
You must start the Employment Tribunal process within three months (less one day) of the date of your dismissal. You start the Employment Tribunal process by initiating ACAS Early Conciliation. More information about ACAS Early Conciliation can be found here – https://lincslaw.co.uk/blog/acas-early-conciliation-what-is-it-all-about/
Lincs Law Employment Solicitors Can Help You
Here at Lincs Law Employment Solicitors, we understand that being dismissed for gross misconduct can have a devastating effect on you and your family. As specialist employment solicitors, we would be delighted to help you. If you would like a free consultation with one of the team at Lincs Law Employment Solicitors, please contact us for a free no obligation consultation with a fully qualified Employment Solicitor. Simply use the contact form, engage in a web chat, email email@example.com or call us on 01522 440512 and we’ll be happy to help.
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