An Employer’s Guide to Gross Misconduct
I think it is fair to say that most queries we receive from businesses are related to the conduct of their staff.
Fortunately, most cases concern low levels of misconduct which can be tackled formally or informally but seldom result in someone losing their job. However, sometimes the actions of an employee are so severe that dismissal seems the only option.
This article will focus on distinguishing between gross misconduct and other kinds of misconduct, whilst dispelling a few commonly held myths along the way as well as looking at some frequently asked questions.
So what is it?
Most employee handbooks will give a list of examples of gross misconduct such as:
- Threatening/violent conduct
- Serious breaches of health and safety
- Incapacity to work due to alcohol or drugs
However, these lists are not exhaustive and may also depend on the type of industry. Put simply gross misconduct is conduct which shatters the trust and confidence placed in an employee which results in an employer being legally able to terminate their employment without notice or any payment in lieu of notice. This is also known as ‘summary dismissal’.
So this entitles me to sack someone on the spot?
No. I often hear employers use the phrase ‘instant dismissal’ and this is not what a summary dismissal is. There is still a requirement for you to follow a fair procedure despite how serious the allegations are.
REMEMBER– an employee with over 2 consecutive years’ service can claim unfair dismissal.
What should I do if I suspect someone has committed an act of gross misconduct?
Take advice, call our experts. Do not delay in doing this as most cases of gross misconduct fall foul of the law in those very early stages.
Do I have to suspend the employee?
Most allegations of gross misconduct require suspension from work. Suspension has to be handled carefully so as not to give an impression that you are dismissing the employee there and then or have already made your mind up as to their guilt.
Suspension is a holding measure and allows an investigation to take place; it can be very difficult to do this fairly with the employee on the premises.
It is also something that may have a bearing on the fairness of your decision to dismiss. Imagine the scenario of suspecting a particular employee is stealing money from the till, that employee then continues to work on the till for a further 2 weeks before they are suspended from work. How will you justify a dismissal on the basis that the employment relationship has been irrevocably destroyed if you allowed the employee to continue to handle cash whilst under suspicion?
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Can gross misconduct be a one off event or is it a series of events?
Both. If we use the example of theft again, you do not have to catch the employee in the act numerous times. They may have been stealing from you for a while without being under suspicion or they may be caught first time.
How long do you have to suspend an employee?
For as long as it takes to investigate the allegations, such as interviewing any potential witnesses, viewing CCTV and so on.
It shouldn’t be in place for too long because suspension is paid, so it is a cost to your business.
I’ve got all the evidence together, I have also interviewed the employee under suspension, now what do I do?
You will likely now be in a position to progress to a formal disciplinary hearing. The evidence needs to be presented to the employee and is usually sent to them together with a letter inviting them to attend the disciplinary hearing.
REMEMBER! The person who investigates should not then chair the formal disciplinary hearing*. If this happens this makes you judge, jury and executioner and may make any decision to dismiss procedurally unfair.
*There may be exceptions for small businesses*
I have found my employee stealing for a second time; I told her last time that if she did it again it would be gross misconduct.
This is a common problem when advising on gross misconduct cases.
Not all allegations of gross misconduct will automatically lead to dismissal, however if you did not class the first incident as gross misconduct you will have a hard time justifying a summary dismissal on the second incident.
In effect you have set yourself a dangerous precedent by your failure to take action the first time but by taking advice we can ensure this does not happen.
Does the right to appeal apply in cases of gross misconduct?
Yes. Again please try to allocate someone to hear any appeal who was not involved in the original investigation or the decision to dismiss*.
The appeal period is usually around 7 days. Check the contract!