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.
Most employers set out in the contract of employment or company handbook what is considered to be an act of gross misconduct. This can vary depending on the nature of the role. Your employer will be in a stronger position to defend any claim if it has clearly identified in advance what constitutes gross misconduct, and brought this to your prior attention. In many cases, such as dishonesty, physical violence or theft, the position will be obvious, regardless of what your contract may state.
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, you may find it is no longer credible for you to go back to work- whatever the outcome of the investigation. This is especially where your role involves the managing of a team or client accounts. 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.
Whether or not you are suspended, your employer may well decide to hold an investigation meeting prior to taking any 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 you 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.
Should there any difference in the investigation process where you are facing career threatening allegations?
Where you are facing potentially career threatening allegations, then the standard required for an investigation is higher. Your employer must carry out an “even-handed, careful enquiry”. This means the investigator must focus equally on any potential evidence that may point towards your being not guilty and/or innocent of the allegations against you, as they should in relation to evidence which could prove the charges against you. It may not be considered reasonable, for example, for your employer to withhold evidence of witnesses who they decided could not assist because they had not witnessed the actual events in question. This is is because such facts (the absence of witnessing the event) could be highly relevant as part of your defence.
How much notice is required for a disciplinary meeting, and is it possible to postpone this?
You should be notified in writing with sufficient information and/or evidence and be given details of the meeting time and venue. The disciplinary meeting should be held without unreasonable delay and allow you reasonable time to prepare your case. The law does not state what is considered to be “reasonable”, but usually at least a few days is expected and sometimes up to a week will be appropriate. The amount of notice will depend on a number of factors including the amount of evidence supplied, as you will need sufficient time to review this evidence and prepare your case before the hearing takes place.
You also have a statutory right to request to postpone the disciplinary hearing for up to 5 working days, if your chosen companion is not available to attend on the initial date set by your employer.
If you are persistently unable or unwilling to attend a disciplinary meeting without good cause, the ACAS code says your employer may end up having to make a decision on the evidence available, and without you present. It will usually be reasonable for an employer to do this when an employee is being difficult or trying to inconvenience an employer. The tribunals have said that this will also include situations where, even without bad faith on the part of the employee, proceedings have gone on for long enough and a decision must be taken.
If you are off sick, your employer should proceed with extra caution, but again they are not expected to put off a disciplinary hearing indefinitely. Your employer should only proceed to hearing, however, if they have exhausted other avenues, for example, inviting you to make written submissions if you cannot be present due to sickness, or trying to obtain an occupational health report on your ability to participate. It may be that a video call via zoom for example, would even be a appropriate way to proceed.
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;
2. 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 the misconduct as a sufficient reason to dismiss you. A 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 and proportionate, consideration should be given as to whether a demotion or a final warning may be more appropriate. What should be taken into account here (and how a tribunal would look at it) is your length of service, prior disciplinary record, whether you admitted the misconduct and showed remorse, the background to the offence, if you were under stress and any other mitigating factors.
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“.
Can a series of more minor breaches amount to gross misconduct, even though no one breach does?
Yes, it is possible for the tribunal to determine that a series of series of acts demonstrating a pattern of conduct to be of sufficient seriousness to amount to gross misconduct. This can therefore amount to a reasonable response from your employer if you were dismissed this way.
Can my employer dismiss me if I have been charged with a criminal offence, even if I have not been convicted?
The fact that you have been charged with a criminal offence will not necessarily be a good reason for dismissal if the alleged offence took place outside work. A dismissal may be fair if, for example, continuing to employ the employee would seriously damage the employer’s reputation or if there is another genuine connection between the alleged offence and the employee’s employment. However, each case will be different and the employer cannot simply rely on the charge by the police.
The employer should carry out its own investigations and following a fair procedure before taking any disciplinary action against an employee who has been charged.A charge would generally have a sufficient connection to the employee to warrant dismissal in the following circumstances:
- As above, if your behaviour risks bringing the employer into disrepute. For example, if someone who works with (and has access to) vulnerable groups has been charged with assault, or if someone who has a public facing role has been charged with an offence which has been reported in the press.
- If you are guilty, the offence makes the employee unsuitable for the job, for example, if someone who handles money on behalf of the business is charged with theft or fraud.
- If your employer genuinely loses trust and confidence in you or if your colleagues reasonably refuse to work with you upon learning of the charge. This might include a senior employee being prosecuted for drink-driving (which could cause concerns about their performance at work) or it might be reasonable for women to refuse to work alone with a male employee who has been charged with sexual assault.
Where you have not yet been convicted, in most cases a dismissal will only be fair if the employer has conducted a sufficiently thorough investigation, and the employer has formed a genuine (reasonable) belief that you are guilty.
While, in general, it is more likely that charges of violence, dishonesty and sexual offences are most likely to provide fair grounds for dismissal, the court assesses each case on its own facts. An employer should consider all the surrounding circumstances before deciding whether or not to dismiss you (including whether a lesser sanction might be appropriate), and a thorough procedure should be followed. If not then you may have a claim for unfair dismissal.
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 against you;
- go through the process and apologise in the hope that your employer will not dismiss you:
- 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 one, such as an informal discussion) all point 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, it may seem like a good idea to leave before you are pushed. Indeed in some cases, this will indeed 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.
You would also be giving up the opportunity to defend your position, or appeal any dismissal.
Furthermore, you are still putting at risk how this will look to future employers if your old employers decide to disclose that you resigned after facing allegations of gross misconduct and pending disciplinary proceedings. 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 the proceedings.
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 and you will be in no better position than had you not resigned. This is because the dismissal will supersede your resignation.
Notwithstanding the above, a resignation may nevertheless be a better option where 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.
If you decided to ride out the disciplinary and you were still dismissed, then this could give rise to an unfair dismissal claim instead.
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 a dismissal is likely and that any future relationship with your employer is untenable (whatever the outcome of the disciplinary), it is often beneficial for a negotiated exit with your employer to be considered.
A negotiated exit may work if your employer can be convinced they are at risk of a successful legal challenge to the disciplinary proceedings. Such a challenge may be as a result, for example, due to a failure to follow the right process or where the sanction of a dismissal is too harsh.
This is a highly tactical situation, and one that is more likely to work in your favour if you have a lawyer representing you in the negotiations- especially to put the legal risks to your employer. It also shows you are serious in protecting your position and reputation.
If your employer can be persuaded to enter into settlement discussions, a typical exit package is payment of your notice and outstanding holiday together with a lump sum compensatory payment (tax free up to £30k). You would also expect to receive an agreed job reference, which is likely to be factual only (dates of employment and job title). In cases where the evidence against you is strong, it may be that it is only the job reference which can be negotiated-without any mention of the disciplinary proceedings. This is still very valuable to most employees as it is a passport to future employment without the stain of a gross misconduct dismissal.
If terms can be agreed, you are very likely too be asked to sign a settlement agreement which makes the deal binding and upon which you must take independent legal advice. The signing of the settlement agreement also means that you cannot make any future claim against your employer.
We have advised thousands of employees and senior executives facing gross misconduct proceedings. Urgent advice is usually 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.