Gross misconduct is misconduct so serious as to justify the immediate dismissal of an employee. Certain acts, such as theft, fraud, physical violence or serious negligence would almost always be gross misconduct; the circumstances, however, are, more often than not, less than black and white.
Employers must always take into account the nature of their business and the circumstances surrounding the misconduct before any decision to dismiss is made. What is deemed to be gross misconduct in one industry may not be in another. For example, regularly using offensive language may be treated differently in different sectors and working environments.
While misconduct is one of the five potentially fair reasons to dismiss, it is essential that employers do not act hastily.
An employee with qualifying service (one year and 51 weeks’ continuous service) is protected from unfair dismissal. A fair procedure (including investigation, disciplinary and appeal stages) should be followed before reaching a decision on the outcome, as failure to do so could leave the business exposed to an unfair dismissal claim in the employment tribunal and associated costs.
Failure to follow the Acas Code of Practice could also result in compensation being increased by 25 per cent. There are detailed provisions for each stage of the procedure that should be followed and employers should seek advice if in doubt.
Employees do not require any length of service to pursue claims for automatic unfair dismissal and so it is never a good idea to dismiss them on the spot.
In some circumstances, suspending the employee on full pay may be appropriate; however, the question of whether to suspend should be carefully considered, rather than a ‘knee jerk’ reaction to allegations arising.
Reasonable to dismiss?
For a gross misconduct dismissal to be fair, the employer must be able to show that the misconduct was the reason for the dismissal and that in the circumstances it was reasonable to dismiss. The employer does not have to show that the employee was guilty of gross misconduct for the dismissal to be fair.
Whether it was reasonable to dismiss is determined by whether the employer reasonably believed at the time of the dismissal that the employee was guilty of the alleged gross misconduct and whether the employer had grounds to believe that the employee was guilty of that misconduct.
To do this, the employer must conduct such an investigation that is fair in the circumstances. This usually includes collating evidence including relevant documents and witness statements, and giving the employee the opportunity to explain themselves and respond to the evidence collated.
If there are any mitigating circumstances or if the misconduct was out of character for the employee, the employer must be seen to take this into account.
Consequences for the employee
Dismissal for gross misconduct does not attract notice pay and a gross misconduct dismissal can have huge consequences for an employee, particularly in certain professions.
The greater the potential consequences for the employee, the greater the obligation on the employer to show the investigation and disciplinary process was reasonable.
Alternatives to dismissal
Depending on the circumstances, employers may wish to consider offering a demotion and a warning as an alternative to dismissal. You should follow a fair process and ensure contractual terms are not breached if you wish to pursue this option to avoid inadvertently breaching the contract and exposing the employer to further claims.
It is at the employer’s discretion to exercise leniency, although they should bear in mind setting precedents and being consistent when exercising such discretion.
Settlement agreements are also an option should the employer want to avoid the risk of a tribunal claim.
Claire Brook is a partner in the employment team at Aaron & Partners