What is gross misconduct?
Gross misconduct is considered to be an action so serious as to justify summary dismissal. For more information about what constitutes gross misconduct in employment read on.
What constitutes as gross misconduct will vary according to the particular circumstances but examples would be theft, physical violence or serious negligence. Such examples are usually set out within an organisation’s disciplinary procedure but they must be acts which destroy the trust and confidence between the employer and employee.
It is a common misconception that where acts of gross misconduct have been alleged, summary dismissal can take place immediately but, in reality, the employer should still adhere to a fair procedure so as to negate the possibility of facing a potential Unfair Dismissal claim.
In order for an employer to fairly dismiss an employee they must be able to show that they had a fair reason for dismissal and that they adhered to a fair procedure.
Misconduct is one of five potentially fair reasons for dismissing an employee but the employer needs to have a genuine belief in the employee’s misconduct and that belief must be justified. If a claim is issued for Unfair Dismissal, the employer would have to show that dismissal on the grounds of misconduct was a decision a reasonable employer would have made and that it was both fair and reasonable in the circumstances. They would also need to satisfy, to the Employment Tribunal, that the sanction was appropriate.
How would an employer show the dismissal was reasonable?
Below is not an exhaustive list but these are three common points which a reasonable employer should be able to evidence to the Employment Tribunal.
1. Alternatives to dismissal
As referred to above, the employer should consider what sanction is appropriate as part of the disciplinary process, i.e. the employer is expected to consider alternatives to dismissal. 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 also 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 the employer showing they had a fair reason for dismissal, the employer is also expected to adhere to a fair procedure and the key principles, in assessing procedural fairness, are as follows;
- 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.
The above procedure is illustrated by the ACAS Code on Disciplinaries and Grievances 2009, which sets out steps a reasonable employer should adhere to.
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Associate Employment Solicitor