Gross misconduct is an act or behaviour sufficiently serious to lead to dismissal without notice or payment in lieu of notice (PILON). Given the severe implications of gross misconduct, it will be important for employers to ensure they acting fairly, lawfully and consistently in taking disciplinary action against an employee for gross misconduct.

What is gross misconduct?

What constitutes gross misconduct can vary between organisations. In most cases, it will ordinarily include theft, physical violence, gross negligence, and serious insubordination. Organisations are advised to specify and detail their definition of gross misconduct within their internal disciplinary policy. It is also important for employees to be clear on what behaviour and conduct is expected and what can result in disciplinary action.

How does gross misconduct differ from misconduct?

How does misconduct differ from ‘gross’ misconduct? The difference lies in the severity of the act and its effect on the business.

Misconduct may include acts such as taking sick leave when you’re actually well or having continually bad timekeeping. While misconduct is considered to be unacceptable and can result in disciplinary action, it is not sufficiently serious to justify instant dismissal.

Examples of gross misconduct

Looking at the more common areas of gross misconduct at work, examples could include:

Fraud, theft and dishonesty

• stealing petty cash
• taking office supplies for personal use outside of work
• stealing from colleagues
• fraudulently claiming expenses
• making gain from industrial espionage
• falsifying work documents
• using work premises for fraudulent or personal use

Physical violence and offensive behaviour

• fighting and physical assault
• bullying
• harassment, sexual or otherwise
• rape
• intimidating behaviour
• acting in an overly aggressive manner
• horseplay that may lead to injury or damage of items in the workplace

Gross negligence and breaking health and safety rules

• not wearing the required safety and protection clothing
• not handling dangerous chemicals with sufficient care
• removing safeguards from equipment
• not safeguarding pregnant employees or those at greater risk in the workplace

Causing damage to the workplace or items in the workplace

• acts of gross negligence that lead to damage, such as stacking crates in an unsafe, unchecked manner, and
• acts of wilful damage, such as arson.

Gross misconduct related to alcohol and drugs

• being incapable to work due to intoxication or being under the influence of drugs
• taking drugs at work
• buying or selling drugs at work

Being drunk or under the influence of drugs at work could also lead to other categories of gross misconduct such as physical violence or negligence of health and safety.

Damage to the business

Any of these acts of gross misconduct could cost the business money, damage its reputation as a good employer and honest business, and lead to legal action.

How to handle gross misconduct

While gross misconduct can provide lawful grounds for summary (or instant) dismissal, employers should proceed with care and ensure they follow a fair process in deciding to dismiss an employee without notice or PILON. Organisations should have a disciplinary procedure in place that ensures compliance with the ACAS Code of Practice on disciplinary matters.

This means it is not generally advisable to dismiss an employee ‘on the spot’, but instead, requires a full and fair investigation and a disciplinary hearing to be conducted, ensuring the employee is:

• treated fairly and without discrimination
• informed of the disciplinary procedure and the possible disciplinary outcomes
• allowed to attend a disciplinary hearing to defend themselves against allegations of gross misconduct

During the investigation, it may be necessary to suspend the employee. However, you should make it clear that this is not a punitive measure. Ensure suspension is on full pay and the employee must be kept informed of the investigation so that they may offer their own evidence and prepare for the hearing. One benefit to suspending an employee in this way is to remove them from the workplace for the time being as their continuing presence may exacerbate the situation or impede on the investigation.

Where there is police involvement with the alleged gross misconduct, for instance, where money has been stolen from petty cash, the employer should still proceed with their investigation. However, it is advised to record the police’s findings as part of the disciplinary and grievance process.

The investigation should not only seek to prove whether an act of gross misconduct has taken place but also to inform the decision on whether to classify the employee’s behaviour as gross misconduct and dismiss them, by examining the following:

• How serious was the behaviour? e.g. life threatening or minor damage?
• Is there anything that could justify or explain the behaviour? Are there mitigating circumstances? e.g. was an employee bullied to an extent that they became violent?
• Could the situation be improved? e.g. is the employee truly sorry and willing to pay for items stolen from the business?
• Is it likely the act of gross misconduct will be repeated? e.g. is an employee likely to continue to bully other employees?
• What is the employee’s position in the company? e.g. where they have been negligent in handling equipment but the resulting damage was minor, could they be re-assigned to a different role or a different department?
• Is this the employee’s first offence? e.g. where an employee has a history of sexually harassing female employees, have previous disciplinary actions had any effect on their behaviour?
• What does the employer’s disciplinary and grievance policy say about this particular act of gross misconduct?

If the investigation results in evidence of gross misconduct, you should arrange a disciplinary hearing to present the allegations and evidence to the employee and allow them the opportunity to provide their case in defence.

Following the hearing, a decision should be made as soon as possible and the employee should be informed in writing, along with details of the disciplinary action that has been decided. An employee accused of gross misconduct has the right to appeal against any decision made at the hearing.

Avoiding tribunal claims

An employer should not dismiss an employee accused of gross misconduct without following a disciplinary and grievance process. Failure to follow a fair and lawful process in dismissing an individual can give rise to tribunal claims for unfair dismissal.

Should the employer decide to dismiss the accused employee, they must be able to demonstrate that:

• they have treated the employee fairly and without discrimination
• they have proved the employee’s guilt to their own satisfaction
• they have fully investigated the gross misconduct in accordance with their disciplinary and grievance procedures, and in keeping with related legislation and good practice
• dismissal is a reasonable response to the act of gross misconduct
• the employee was fully aware of what constituted gross misconduct and/or the employer had made this information easily available to the employee

Depending on the circumstances, it may be appropriate to consider a negotiated exit , which could have the benefit of removing the risk of a future tribunal claim while allowing the employee to exit the organisation without a dismissal on their personnel record.

DavidsonMorris’ specialist employment lawyers can assist if you are dealing with a potential gross misconduct issue or dismissal. We are also highly experienced in drafting settlement agreements to help settle complex matters.