What’s gross misconduct?

Gross misconduct is a term that is used in an employment context that most people have heard of but do not necessarily know the true meaning. Essentially it is conduct that is so serious that it undermines the employment relationship and more often than not will result in summary dismissal (ie without notice).

What constitutes gross misconduct may vary according to the particular circumstances of an employer’s business and the work carried out by the employee.

Common acts of misconduct that are deemed gross misconduct are (this list is not exhaustive):

• acts of dishonesty, whether at work or otherwise, where an employee’s conduct affects their ability or suitability for continued employment with the employer (eg theft, fraud and the deliberate falsification of employer records);
• refusal to obey a legitimate order or instruction;
• serious insubordination towards the employee’s line manager, any other manager or a director;
• serious insubordination or rudeness to clients, customers, suppliers or others with whom the employee came into contact during the course of carrying out their duties;
• causing deliberate damage to, or misuse of, employer property or the property of any client, customer or other third party;
• gross negligence or other civil wrongs or breaches of statutory duty resulting in significant financial or other loss to the employee or to any employee, client or customer of the employer;
• fighting, physical assault or aggressive behaviour;
• indecent or immoral acts;
• being under the influence of, or possessing, alcohol or illegal drugs during the course of their employment;
• harassment and/or bullying;
• committing any act of unlawful discrimination against another person in the course of carrying out their duties; and
• actions bringing, or likely to bring, the employer or any of its directors or shareholders into serious disrepute.

Procedure

If an employee is alleged to have committed an act of gross misconduct and irrespective of whether they have been caught “red handed” performing the misconduct, employers should follow the Acas Code of Practice 1 – disciplinary and grievance procedures. This sets out the requirements for handling disciplinary matters. Essentially, the employer should:

(1) suspend the employee from work on full pay to carry out an investigation into the allegation(s) – this should be done as quickly as reasonably practicable;

(2) investigate the allegation without unreasonable delay – this could involve interviewing the employee and other staff to provide evidence in relation to the allegation(s);

(3) at the conclusion of the investigation the allegation(s) against the employee should either be dropped based on the evidence or proceed to a disciplinary meeting;

(4) before a disciplinary meeting, the employee should be:

• informed in writing details of the allegation(s) against him/her and the basis of the allegation(s);
• provided with a copy of all relevant documents to be used at the meeting, which may include witness statements;
• provided with a date, time and location of the meeting without unreasonable delay whilst allowing him/her reasonable time to prepare his/her case; and
• offered the opportunity to be accompanied by a work colleague or a trade union representative;

(5) at the meeting, which should be chaired by a different person that carried out the investigation, the employee should be given a full opportunity to:

• reply to the allegation(s) made against him/her;
• put forward any defence or arguments relating to the allegation(s); and
• comment on what disciplinary sanction (if any) should be imposed, including any mitigating factors he/she wishes to be taken into consideration;

(6) if the person conducting the meeting decides that further investigation needs to be carried out before any decision can be made, the disciplinary meeting should be adjourned and rescheduled; and

(7) the outcome of the disciplinary meeting and any disciplinary action imposed on the employee should be notified in writing and confirming the employee’s right of appeal against any disciplinary penalty, including dismissal; and

(8) if the decision is dismissal, this should only be taken by a person who has the authority to do so and confirmation should be provided of the date when the contract of employment ends.

In some circumstances, although gross misconduct has been found, which would justify summary dismissal, the employer may want to provide an alternative disciplinary sanction such as transfer to a different location, demotion or a downgrading by notice in writing giving details of any consequential changes to the employee’ terms and conditions of employment.

A failure to follow the Acas Code does not, in itself, make an employer liable to proceedings. However, employment tribunals will take the Code into account when considering claims of unfair dismissal and could increase any award made against an employer by up to 25% for unreasonable failure to comply with any provision of the Code.

We regularly advise employers and employees on issues relating to alleged misconduct, including gross misconduct. If you are in any doubt about your legal position, get in touch for experienced help.

Find out how we can help you settle disputes and stay on the right side of the UK’s ever-changing employment law by calling us on 03456 381381, or email your details to employment@ibblaw.co.uk.