How to tackle gross misconduct

Sarah Hayes explores how gross misconduct differs from ordinary misconduct and how employers should go about addressing allegations

The term ‘gross misconduct’ is commonly associated with issues such as dishonesty, harassment and physical violence. In practice, gross misconduct can have a much broader scope and it is therefore important HR professionals understand exactly what the term means.

It's important to be able to classify misconduct as gross because of the effect this has on the employer's right to dismiss. Gross misconduct will allow the employer to dismiss without prior warning. It will also amount to a repudiatory breach of contract, allowing the employer to dismiss an employee without notice. By contrast, a dismissal for misconduct will need to take notice into account and cannot be without prior warning.

What is gross misconduct?

There is no statutory definition of gross misconduct, but case law, such as Neary v Dean of Westminster, refers to conduct which “undermines the relationship of trust and confidence...that the employer should no longer be required to retain the employee”. 

In Sandwell & West Birmingham Hospitals NHS Trust v Westwood, the Employment Appeal Tribunal (EAT) concluded that gross misconduct should include either “deliberate wrongdoing or gross negligence”. The EAT also held that the tribunal must consider both the character of the conduct and whether it was reasonable for the employer to regard that behaviour as gross misconduct on the facts of the case. 

We are therefore normally looking for an act of serious wrongdoing or negligence which makes the continued employment of the employee untenable (i.e. trust and confidence has gone). 

How should an employer deal with suspected gross misconduct? 

An employer should initially check whether the conduct is listed in its disciplinary policy. Disciplinary policies will often set out the types of behaviour that will be considered gross misconduct. However, an employer is not expected to provide an exhaustive list and will not be precluded from treating something that does not appear in the list as gross misconduct. 

A decision to discipline must be guided by the nature of the business and the context. If the workplace is subject to strict health and safety rules, a serious breach of such rules may be treated more severely than in other organisations. Equally, use of offensive language in a primary school is clearly more inappropriate than in other industries.

In certain circumstances, the alleged behaviour may warrant suspension of the employee. However, this should be carefully considered and should not be a knee-jerk reaction. There must be reasonable and proper cause for suspension.

It is of paramount importance that employers consider (and usually follow) their disciplinary procedures carefully when faced with potential gross misconduct. Employers should always take advice before departing from written procedure. 

Employees with more than two years' qualifying service are protected from unfair dismissal, but don't assume you can ignore your procedures for short-servers.

Failure to follow due process can lead to a dismissal being unfair even where an employee has committed gross misconduct. Compensation can also be uplifted by up to 25 per cent. 

Is it fair to dismiss?

This will always depend on the case. To dismiss an employee fairly, the employer must be able to show that:

  • misconduct was the reason for the dismissal; and 
  • under the circumstances, the employer acted reasonably in deciding to dismiss. 

An employer does not have to know or prove that the employee was guilty of gross misconduct for the dismissal to be fair. Instead, the employer must have reasonably believed at the date of dismissal that the employee was guilty of misconduct, following a reasonable investigation. Mitigating circumstances should always be considered and, as stated above, following the procedure is crucial.

Sarah Hayes is a solicitor in the employment team at Paris Smith LLP