Unfair Dismissal: Gross Misconduct
When is it reasonable to terminate an employee’s employment with immediate effect and no notice pay? Read on to find out more.
Disciplinary: Gross Misconduct
Gross misconduct varies, according to the particular circumstances but clear examples would be theft, physical violence or serious negligence. Examples such as these are usually set out in a company’s disciplinary procedure. Essentially, the employee’s actions must destroy the trust and confidence the employer had in the employee.
Whilst an act of gross misconduct can result in summarily dismissal, an employer should still adhere to a fair procedure to show they have acted reasonably and so you would still expect an investigation to be conducted. The onus to dismiss fairly lays with the employer, and they must be able to show they had a fair reason for dismissal and that they also followed a fair procedure.
There are five potentially fair reasons to dismiss an employee and one of these is on the grounds of conduct, or gross misconduct. When terminating an employee’s employment on the grounds of conduct, an employer needs to be able to show they had a genuine belief in the employee’s misconduct and that their belief is justified. The employer also needs to evidence that the sanction of dismissal was appropriate.
Below is not an exhaustive list but these are three common points which a reasonable employer should be able to evidence prior to dismissal.
1. Alternatives To Dismissal
The employer should consider what sanction is appropriate as part of the disciplinary process. While some offences, such as physical violence, are so serious that the realistic option is dismissal, it remains important for the employer to consider all the circumstances and other options to dismissal (such as a final written warning).
2. Mitigating Factors
The employer should take into account all of the circumstances and whether there are any mitigating factors which would suggest that dismissal is not a reasonable response. The following is good examples of what an employer should consider;
- The background to the offence.
- The employee’s length of service.
- The employee’s disciplinary record.
- Whether the employee admitted and showed remorse for the offence.
- Whether the employee was acting under stress.
The employer must act consistently. If they choose not to dismiss another employee, for the same allegations of misconduct, they could risk facing a claim for Unfair Dismissal. This could happen where;
- the employee was led to believe that such conduct was acceptable or would not lead to dismissal.
- if the circumstances are parallel and arise from the same incident but the employee’s are treated differently.
In addition to showing there was a fair reason for dismissal, the employer is also expected to adhere to a fair procedure. When assessing procedural fairness, the following points are considered;
- The employee should know the case against them.
- The employee should know that they are at risk of dismissal.
- The employee should be allowed to make their own representations.
- The employee should be entitled to attend a hearing with a fellow employee or trade union representative.
- The employee should be allowed a right of appeal.
Do You Need Our Help?
If you are experiencing an employment law issue, please do not hesitate to get in touch with me on 01522 440512/ContactUs@lincslaw.com or alternatively visit our website to learn more about dismissal; Unfair Dismissal – LincsLaw Employment Law Solicitors – Based in Lincoln