Employment law- gross misconduct
What is gross misconduct?
Gross misconduct is behaviour by an employee, which is so serious that it goes to the root of the contract and destroys the relationship between an employer and employee. The conduct must be deliberate or amount to gross negligence, which then entitles the employer to dismiss an employee with immediate effect, and without any notice.
The following are the most common examples of gross misconduct:-
- malicious damage;
- breach of confidentiality;
- internet or email abuse;
- fighting or assault on another person;
- breach of an alcohol or drugs policy;
- actions which endanger other employees’ safety;
- gross negligence;
- a serious act of insubordination.
Many employers will set out in their contract of employment or company handbook what they consider to be an act of gross misconduct, and this can vary depending on the nature of your role. Your employer will be in a stronger position to defend any claim if they have clearly identify in advance what constitutes gross misconduct – and that it has been brought to your prior attention. In many scenarios (such as dishonesty or theft), the position will be obvious, regardless of what the company policy or contract states.
The fact that your employer’s policy may list an act as gross misconduct (which you may be guilty of) does not mean that a tribunal will automatically make a finding on this basis. See below for how a tribunal will determine the matter.
What process does your employer need to follow?
The ACAS code of practice sets out the expected process your employer should follow if disciplinary action is being taken because of misconduct. If your employer does not follow the correct process and you lose your job, this could amount to unfair dismissal.
The expected process that your employer should follow under the ACAS code is to:
- properly investigate the matter (see below);
- inform you of the issues in writing;
- give you an opportunity to respond;
- conduct a disciplinary hearing or meeting with you (and provide you with sufficient notice);
- inform you of the decision in writing;
- provide you with the right to appeal.
If you are facing an allegation of gross misconduct, you may well face a suspension on full pay, pending an investigation (see below). If this does happen, the suspension should only be for as long as necessary for the investigation to be completed. in addition, your employer should only follow this course of action where there appears to be evidence of the alleged misconduct, with perceived risks to the business. If the suspension is unreasonably too long, it may affect your credibility in going back to work- whatever the outcome of the investigation. Such a breach of trust and confidence on your employer’s part could give rise to the possibility of you making a claim for constructive dismissal.
In many cases, your employer will hold an investigation meeting prior to taking formal disciplinary action.
What is an investigatory meeting?
This is distinct from a disciplinary meeting, in that it is simply an attempt to gain a measure of the facts available. Such a meeting is therefore not part of the disciplinary process, but does enable you to explain your conduct and clarify matters of concern. Your employer will decide based on your responses whether disciplinary action is then necessary, or they may call for further evidence and decide to hold a second investigatory meeting.
How much notice should I be given before an investigatory meeting?
The ACAS guidelines state that ‘the meeting should be held without unreasonable delay whilst at the same time allowing an employee reasonable time to prepare their case’. There is no definition of what amounts to ‘reasonable’ as each case will be different. Suffice it to say, however, 1-2 days notice by your employer is not usually considered reasonable, whereas a period of about 5 days would constitute adequate notice.
How should your employer carry out an investigation?
Your employer may decide to appoint an investigator to consider all the evidence and produce a report. An investigator who is appointed by your employer in relation to misconduct issue is usually another member of staff, although it more complex cases or where there are insufficient resources, an external investigator may be appointed. The investigator should, wherever possible, not be involved in the original issue being investigated.
The investigator should collect all the relevant evidence, such as witness statements, written documents and any other evidence before drawing a conclusion- which is usually set out in a written report.
Sometimes, it can taken many weeks or longer to conduct a proper investigation depending on the nature of the issues. For example, where allegations of the incorrect use of expense claims are being alleged, it is not uncommon for employers to have to trawl through months of internal records before being able to draw any conclusions.
How will an employment tribunal decide if gross misconduct was a fair reason for your dismissal?
A tribunal will consider a number of factors when considering if the dismissal was fair, including;
- Whether your employer had a genuine belief in your guilt?
- Was this belief reasonable?
- Was the matter properly investigated?
- Was a disciplinary meeting held where you could state your case?
- Were you given sufficient notice of the meeting?
- Were you given notice of your right to be accompanied by a work colleague or trade union official?
- Were you provided with supporting documents and/or witness statement in advance of the meeting?
- Did you have an adequate opportunity to state your case?
- Was the disciplinary meeting chaired by an impartial person?
- Were you given the right to appeal the decision?
- Did your employer follow its own policy (if there was one)?
- Has consistency been applied by your employer for similar previous offences with other staff?
Whilst all the above matters are important, the most fundamental aspect is whether your employer genuinely believed, and had reasonable grounds for believing, that you were guilty of the misconduct at the time, and at the time it held that belief, had carried out as much investigation as was reasonable in the circumstances. This is known as the “Burchell test”. The tribunal should not at this stage place any weight on whether you were actually culpable of the misconduct or not.
To have reasonable grounds for the belief, your employer must have:
-genuinely believed that the misconduct had occurred;
-conducted an appropriate level of investigation and have sufficient material upon which to form that belief.
It is important to note that an employment tribunal does not have to consider whether you were actually guilty or innocent of the misconduct- but whether your employer had reasonable grounds for believing that you were guilty.
Once the above tests have been satisfied, your employer would then need to further satisfy an employment tribunal that it acted within the “range of reasonable responses” in treating misconduct as a sufficient reason to dismiss you. The tribunal will not be substituting its own view, or whether it might have reached a different decision. The tribunal will, however, consider whether your employer objectively acted reasonably in both the decision to dismiss (which should take into account whether or not you carried out the misconduct), together with the extent of the investigation.
In determining what is reasonable, it may be, for example, that demotion or a final warning is a more appropriate and proportionate sanction, taking into account your length of service and the nature of the misconduct.
What does and does not amount to “reasonable” is going to vary on the individual facts of each case. It is wise to obtain early professional advice.
Does your employer have to dismiss all employees who have committed the same misconduct?
Not necessarily. It depends on whether there are any differences in the circumstances of the various employees to justify the disparity of treatment. If there are no differences, the question a tribunal will then need to consider is whether or not it was reasonable for the employer to dismiss one employee and not the other. It will not always be easy for an employer to show why they were not consistent in their approach.
In one recent case,however, a tribunal determined that if it was reasonable for an employee to dismiss one employee “the mere fact that the employer was unduly lenient to another employee was neither here nor there“.
Should you resign if you are facing an allegation of gross misconduct?
When you first face an allegation of gross misconduct, it is natural to want to either:
- defend the allegations vigorously;
- go through the process and apologise in the hope that your employer will not take matters further:
- resign before you are dismissed (either because you are so incensed and/or because you can’t take the risk of a dismissal on your record).
If there is overwhelming supportive evidence against you and your employer has instigated disciplinary proceedings, the reality is you are more likely than not to ultimately be dismissed. In fact even without such evidence, the mere fact that your employer is proceeding down a gross misconduct route (rather than a less serious route) all points to a likely dismissal.
The question of whether or not you should resign before a gross misconduct hearing is one we are often asked. At first glance, this may seem like a good idea- to leave before you are pushed. Indeed in some cases, this will be an appropriate course of action. However, there are other considerations to think about. If you simply resign when facing gross misconduct allegations, how will this look to your employer? It could be construed as a sign of guilt, even though you would be maintaining your innocence at the same time.
You would also be giving up the opportunity to defend your position, or appeal any dismissal. This could adversely affect any subsequent employment tribunal claim you may want to make.
Furthermore, you are still putting at risk how this will look to future employers if your old employers decide to disclose (no matter what) that you resigned after facing allegations of gross misconduct. You may also be “jumping the gun” in that it’s possible a lesser sanction would have been imposed had you taken the opportunity to defend your position.
In addition, even if you do resign with the intention of working your notice, your employer can still decide to hold the gross misconduct hearing during the notice period- and then dismiss you with immediate effect. If this happens, you won’t receive the balance of your notice payments.
A resignation may nevertheless be tactically better where, notwithstanding the above factors, your employer has so obviously raised a” trumped up” and unsubstantiated allegation of gross misconduct. You would need to show that this has put you in an impossible situation to be able to continue employment, and that it has destroyed the trust and confidence between you and your employer. This would effectively be a constructive dismissal claim.
This is the time that you really do need to make urgent professional advice. The decisions you take are likely to have significant ramifications for your future employment.
A negotiated exit
Where you believe that dismissal is likely, and that any future relationship with your employer is untenable in any event, it is often much more beneficial for a negotiated exit with your employer to be considered. This is a highly tactical situation.
Essentially, if it can be shown that there is a legal basis to defend the allegations against you (either because the allegations are unreasonable or because there has been a failure to follow a correct disciplinary process), your employer may have an incentive to agree settlement terms. This is especially where there remains some goodwill towards you on a personal level, and/or where your employer feels there is some risk to a claim.
A typical exit package is a lump sum payment together with a job reference, in return for which you would warrant not to bring any tribunal claim against your employer. If terms can be agreed, you are likely too be asked to sign a settlement agreement which makes the deal binding and upon which you must take independent legal advice.
In looking at a negotiated exit, an employer is usually going to be persuaded to enter into settlement discussions if they consider they are at risk on the legal side. It is for this reason that it is usually better to have a professional to deal with the negotiations with your employer, who can properly employ the necessary strategy and tactics to achieve a favourable result. Most HR personnel are very familiar in dealing with employment lawyers- not least where there are issues relating to gross misconduct.
We have advised thousands of employees and senior executives facing gross misconduct proceedings. Usually, urgent advice is needed, together with appropriate solutions.
We have a very high success rate in negotiating favourable settlements, and will consider a no win- no fee funding arrangement.
What if you don’t have 2 years qualifying service? Are there any claims you can still make if you have been dismissed for gross misconduct?
You need to be employed for a minimum of 23 months and 3 weeks (and not having already been given notice) before you can make a claim for unfair dismissal. If you are therefore dismissed for gross misconduct prior to this period without any notice, then your options are limited.
You may, however, have grounds to bring a wrongful dismissal claim on the basis that your employer has breached your contract in failing to pay your notice because of a misconceived gross misconduct allegation. To justify summary dismissal, the misconduct must equate to a fundamental breach of the contract of employment. The main claim you could therefore make is a potential one for unpaid notice. However, you may also have a claim for lost salary. This additional claim would be made if your employer has not followed a contractual process in dismissing you, and would reflect the loss of salary for the time that any contractual procedure would have taken had it been followed.
You can bring a claim in the civil courts or at employment tribunal for wrongful dismissal/ breach of contract. However, civil court claims are usually expensive and the losing party will pay the costs of the winning party, increasing the risks, which doesn’t usually happen in the tribunal.