Gross Misconduct: Is dismissal the right punishment?

No employer reaps satisfaction by dismissing an employee. Likewise, no employee enjoys being dismissed!

You may be familiar with the term ‘gross misconduct’ but are not entirely clear on what it entails. Summary dismissal and gross misconduct can often be a minefield of problems, grey areas, and complications.

Have you have been dismissed due to misbehaviour? Do you want to know your rights, or are you looking to appeal? Then read on to get the lowdown on the law!

What is Gross Misconduct?

There is no hard and fast list detailing what actions will constitute gross misconduct. This is because it varies between companies due to nuances in culture and business style.

Generally, gross misconduct involves a profoundly serious transgression or wrongdoing by an employee. This misbehaviour can permit the employer to summarily dismiss the employee without notice or payment in lieu of notice (PILON).

Summary dismissal does not mean that the employee will be sacked on the spot and frog-marched off the premises! There is a procedure to follow that often involves an investigation and a disciplinary hearing.

Not following a summary dismissal process can result in an employee being entitled to lodge a claim for unfair dismissal via an employment tribunal.

What can count as Gross Misconduct?

As already stated, there is no exhaustive list. Nevertheless, key examples can include:

• Being under the influence or intoxicated at work
• Severe insubordination
• Indecency
• Dishonesty
• Grave breaches of health and safety
• Discrimination, harassment, or bullying
• Using workplace amenities for personal use such as social media, downloading pirated software
• Breaking data protection laws
• Bribery – either offering or accepting

Were your actions an accident?

Gross misconduct is usually a severe act resulting in the breach of trust between an employee and employer. This can include theft, violence, gross negligence, or severe insubordination.

However, what about acts that can fall under the heading of gross misconduct which was genuine accidents?

Acts of gross misconduct must be deliberate. It is understandable that when we are busy or in a rush, oversights can happen.

For example, we have seen cases where an employee has failed to lock a safe overnight as a genuine oversight. Alternatively, leaving a tap on causing flooding and therefore damage to company property.

The difficulty comes when needing to prove whether an employee should be dismissed based on an error or mistake. Could this have happened to anyone?

If taken to an employment tribunal, these types of cases could go either way. It will often vastly depend on the type of error caused. A tribunal could see that inattention may be grounds for gross misconduct and warrant dismissal.

Employers need to be mindful that dismissal is not always warranted because an action has fallen under the subject of gross misconduct. Therefore, we encourage thorough investigation based on specific circumstances and a full review of whether dismissal is ‘reasonable’.

Insubordination and Gross Misconduct

Again, it could be argued that not all insubordination is grounds for gross misconduct.

Insubordination is basically a refusal to obey orders or follow authority. A tribunal will question whether the instructions were reasonable and fair – and this can often be entirely subjective.

Acts of insubordination or defiance can include:

• Ignoring order or refusing to complete work
• Showing disrespect through unacceptable language
• Openly mocking business or management decisions.
• Using non-verbal displays of defiance such as eye-rolling or huffing

Dishonesty and Gross Misconduct

Dishonesty can come in many forms. This could be outright theft of money or property, falsification of records, or acting with premeditated dishonest intentions.

In terms of summary dismissal and gross misconduct, the mere suspicion that an employee is dishonest is not enough. Similarly, actual proof is also not necessary and not always possible.

In these instances, it falls to a balance of probabilities and the standard civil burden of proof.

For example, an employee working in a clothes shop badly rips his trousers. He is unable to continue working or travel home with them in such a condition. The employee takes a pair of trousers from the stockroom intending to return them the following day.

As the employee has left the premises without paying for the trousers, this would be classed as theft and be grounds for instant dismissal.

However, a tribunal could question:

• Whether the employee has been given the benefit of the doubt
• Whether their actions were reasonable
• And whether there was an intentional act of dishonesty.

You could be dismissed straight away in cases of ‘gross misconduct‘. Should you make a complaint to an employment tribunal? Get advice from an employment lawyer!

First Time Offenders and Gross Misconduct

Gross misconduct can result in dismissal for a one-off offence. However, the key thing to remember is that any dismissal must be fair, even if it is for misconduct.

Some employers may consider a previously clean record or long service, but this can not be guaranteed.

If you have committed a transgression, then it is best to admit the error early on. You employer could show leniency for your honesty and appreciate your contrition.

Key Takeaway

As there are no hard and fast rules about what constitutes gross misconduct, it leaves the field open to interpretation and personal opinion.

The key takeaways are that all employers should be clear about their expectations and the consequences of misconduct. This needs to be reiterated in all staff handbooks and employee contracts.

If you feel that your employer has unfairly dismissed you or you want further advice and guidance on how to deal with your particular situation, then we are here to help you. Contact an Employment Solicitor for advice.

Read more: Constructive Dismissal – The Essential Guide For 2020!