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 your 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. Employers will be in a stronger position to defend any claim if they clearly identify in advance what constitutes gross misconduct and this has been brought to your 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 an employer’s policy lists 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 should your employer follow?
The ACAS code of practice recommends that an employer investigates all allegations of gross misconduct and give you the opportunity to respond to the same. You are entitled to be accompanied at any disciplinary meeting by a work colleague or trade union representative.
A dismissal also needs to be a “reasonable and proportionate” response by your employer. It may be, for example, that demotion or a final warning is a more appropriate sanction. If the matter ended up at an employment tribunal, an employer would have to satisfy the tribunal that the decision:
- would be one that a reasonable employer would have made;
- and that it was both fair and reasonable in the circumstances.
If your employer cannot satisfy the above, you may have a claim for unfair dismissal.
See below for what steps you could take if you don’t have the qualifying service.
In many cases, an employer will suspend an employee on full pay, pending an investigation on the misconduct they believe has taken place. A suspension should only be for as long as necessary for the investigation to be completed, and an employer should only follow this course of action where there is prima facie evidence of the alleged misconduct- and there are perceived risks to the business. The suspension may otherwise be considered as “a breach of the duty of trust and confidence” by an employee, giving rise to the possibility of making a claim for constructive dismissal.
You should be entitled to appeal the dismissal.
How will an employment tribunal decide if gross misconduct was a fair reason for your dismissal?
A tribunal will consider a number of factors, 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 the 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?
It is important to note that even if an employer does not follow a correct process, it doesn’t mean any failure will automatically mean the dismissal was unfair. It will be down to the tribunal to decide by weighing up all the factors.
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 to apologise and hope it goes away, or resign before you are dismissed (thereby keeping your reputation intact).
Whether or not you agree with the disciplinary action against you, a dismissal for gross misconduct may cost you dearly in terms of your future career. This is especially if any job reference gives reasons for the dismissal, which can make it very difficult to secure new employment. If there is overwhelming supportive evidence against you, the reality is you are likely to be dismissed. In fact even without overwhelming evidence, the mere fact that your employer is proceeding down a gross misconduct route (rather than a less draconian route) all points to a likely dismissal.
The question of whether or not you should resign before the gross misconduct hearing is therefore 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 is an appropriate course of action. However, there are other considerations to think about. If you simply resign when facing gross misconduct allegations, how does this look to your employer? It is likely to be construed as a clear sign of guilt. You would also be giving up the opportunity to put your case, or appeal any dismissal. At the same time, you put at risk your future job reference if your new employers are informed 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.
You should also bear in mind that even if you do resign and give 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.
Where a resignation may be better tactically is where your employer has not followed a fair disciplinary process, which has put you in an impossible situation. This would effectively be a constructive dismissal claim. You would need to show that your employer has handled the process in a way which destroys the trust and confidence between you. Examples include your employer not making you aware of the charges against you; refusing to let you call relevant witnesses; not holding a disciplinary hearing; calling in the police without first warning you, or unreasonably suspending you. Each case will be dependent on the facts and we would always suggest that you take professional advice first.
A negotiated exit
Where you believe that dismissal is on the cards in any event, and that any future relationship with your employer is untenable, it is often much more beneficial for a negotiated exit 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 (either because they are unreasonable or because of a failure of 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, it is usually far better to be aware of your legal rights first and the strengths of your position. There are also many tactics and strategies that can be implemented and for all these reasons, it is usually better to have a professional conduct negotiations. Most HR personnel are very familiar in dealing with employment lawyers.
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. We 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 before you can make a claim for unfair dismissal. If you are therefore dismissed before this period for gross misconduct 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.