Gross misconduct at work

Picture this: An employee is caught stealing company property and is immediately fired without any investigation or disciplinary hearing. You the employer believe you’re justified in doing so due to the severity of the offence, but soon find yourself facing an unfair dismissal claim.

This scenario highlights the importance of understanding gross misconduct and how it should be properly handled in the workplace.

So, let’s explore the concept of gross misconduct, the difference between misconduct and gross misconduct, employer responsibilities, and the disciplinary process involved.

Understanding gross misconduct

Gross misconduct is a severe violation of workplace rules or policies that may result in immediate termination of employment.

Gross misconduct refers to employee behaviours that are so severe that they irreversibly damage the employer-employee relationship, thereby necessitating immediate gross misconduct dismissal without notice or pay in lieu of notice.

These behaviours include theft, fraud, and physical violence and can lead to serious consequences for the employee involved as well as the rest of your staff.

You should follow a fair and lawful process with specific steps while handling allegations of gross misconduct. This involves conducting a thorough investigation, facilitating a disciplinary hearing, and offering the employee an opportunity to present their case.

Failing to do so may result in an unfair dismissal claim and potential legal complications.

Defining gross misconduct

To define gross misconduct is imperative for shaping your company’s disciplinary policy and guiding employees on expected behaviour. Gross misconduct covers serious offenses such as:

• Theft or fraud
• Physical violence and bullying
• Gross negligence
• Serious insubordination
• Serious misuse of an organisation's name or property
• Deliberately accessing internet sites that contain pornographic or other offensive material
• Setup of a competing business
• Misuse of confidential information
• Discrimination or harassment
• Bringing the organisation into serious disrepute
• Offering or accepting bribes
• A serious breach of health & safety regulations
• A serious breach of confidence
• Causing loss, damage, or injury through serious negligence
• Serious incapability at work due to alcohol or illegal drug use

You need to clearly set out the conduct standards expected in the workplace and the disciplinary rules that may be deemed gross misconduct if breached in your disciplinary policy. This can also help with the potential repercussions of a breach.

It’s important to note that the employment tribunal will not automatically deem an act to be gross misconduct solely based on your policy; the tribunal will assess the situation based on the particular circumstances.

Consequences of gross misconduct

The consequences of gross misconduct can range from immediate dismissal without notice or pay in lieu of notice to potential legal implications.

In addition to the termination of employment, gross misconduct can have far-reaching effects on the employer-employee relationship, the organisation’s reputation, and the employee’s future prospects.

It’s crucial to address such issues and take action immediately to prevent further damage. You should also adhere to a fair and lawful process while investigating allegations of gross misconduct to avoid potential complaints and legal claims.

Differentiating between misconduct and gross misconduct

Both employers and employees need to understand the distinct difference between misconduct and gross misconduct.

Recognising the difference between these two types of misconduct can help ensure appropriate disciplinary actions are taken and that your employees are aware of the potential consequences of their actions.

Misconduct

Misconduct refers to minor breaches of workplace rules or policies, such as minor policy violations, repeated lateness, or failure to follow instructions.

The potential repercussions of misconduct may depend on your policies and can include disciplinary actions such as a warning.

In certain situations, misconduct may result in dismissal, if your employee's behaviour fails to improve after receiving warnings and if they have a history of repeated offences.

Gross misconduct

Gross misconduct, in contrast, involves serious acts of deliberate or grossly negligent behaviour that can lead to instant dismissal, such as theft, fraud, and physical violence.

When dealing with offence gross misconduct allegations, you must tread carefully and adhere to a fair and lawful process to safeguard both your company and your employee’s rights.

Employer responsibilities in handling gross misconduct

It’s your responsibility to protect your employees from harm and take appropriate disciplinary actions against individuals who may threaten workplace safety. But you must still follow fair and reasonable disciplinary processes, even in cases of gross misconduct.

This involves the following steps:

1. Conducting a thorough investigation
2. Collecting evidence
3. Conducting a disciplinary hearing
4. Giving the employee the right to appeal
5. Evaluating mitigating factors
6. Suspending the employee if appropriate as a last resort

By following these steps, you can reduce the risk of legal claims and ensure a fair and reasonable outcome for all parties involved. It will also help you restore stability in your workplace for employees who may have been impacted by their colleagues’ gross misconduct.

Disciplinary procedures

To avoid complaints and legal claims, disciplinary procedures should be conducted in a fair and lawful manner.

You must follow specific steps when handling gross misconduct allegations, such as conducting a thorough investigation, holding a disciplinary hearing, and providing your employee with a chance to present their case.

It’s also important for you to follow the comprehensive disciplinary policy you have in place, outlining the process and potential consequences of gross misconduct. By adhering to these procedures, you can reduce the risk of tribunal proceedings and ensure a fair and reasonable outcome.

Risk assessment and suspension

If a severe incident of gross misconduct takes place and poses a threat to the safety of your staff members, it may be necessary to conduct a risk assessment and suspend the individual in question. This precautionary measure is taken to ensure the safety of other employees and the workplace while the investigation is ongoing.

If you suspend an employee who is accused of gross misconduct, they may be suspended on full pay. This suspension, however, will only last for the period required to finish the investigation and should be used as a last resort.

The risk assessment process typically involves the following steps:

1. Investigating the alleged misconduct
2. Assessing potential risks
3. Evaluating the likelihood and severity of the risks
4. Implementing appropriate control measures
5. Monitoring and reviewing the situation

The disciplinary hearing process

The disciplinary hearing process plays a vital role in addressing allegations of gross misconduct.

During the hearing, your employee should be given the opportunity to present their case and they have the statutory right to be accompanied by a work colleague, trade union representative or an official employed by the trade union.

You must gather all pertinent evidence before the disciplinary hearing and its good practice to prepare a report. By conducting a fair and unbiased hearing, you can ensure that the outcome is both just and reasonable, taking into account all the circumstances surrounding the alleged misconduct.

Gathering evidence

For a fair and unbiased investigation, it’s critical to gather comprehensive evidence. You should collect all relevant evidence, such as:

• Emails indicating misconduct
• Incomplete work
• Witness statements
• Written documentation

This evidence should be provided to your employee prior to the disciplinary hearing so that they have an opportunity to review and respond to the allegations made against them. By collecting and presenting comprehensive evidence, you can ensure a fair and reasonable outcome in the disciplinary process.

Employee Rights

You should provide your employees with certain rights to ensure you are being fair and reasonable during a disciplinary hearing. These include:

• Being informed of the complaint or allegations against them
• Being provided with a reasonable time and place for the hearing
• Being accompanied by a work colleague or trade union representative (This is a legal right)
• Responding to the allegations
• Receiving a fair and unbiased hearing
• Appealing the outcome

By respecting these rights and providing a fair and transparent process, you can minimise the risk of legal claims and ensure a just outcome for all parties involved.

Post-hearing actions and outcomes

Following the disciplinary hearing, you should consider the presented evidence and decide on the suitable course of action. This may include issuing a final written warning, demotion, or summary dismissal.

Additionally, you should take into account any mitigating factors pertinent to your employee’s case, like their service tenure, previous disciplinary records, or personal circumstances.

The outcome of the hearing should be communicated to your employee in writing, along with information on their right to appeal the decision.

Considering mitigating factors

Mitigating factors are circumstances or evidence that may reduce the severity or seriousness of the misconduct. Examples of mitigating factors include:

• Provocation
• Mental illness or disability
• Youth or age
• Lack of prior criminal record
• The capacity to reform

You should take these factors into account when determining the appropriate disciplinary action to take following a hearing for gross misconduct.

Communicating the outcome

Transparent communication of the disciplinary hearing outcome is crucial for record-keeping purposes. You should provide your employee with a written document detailing the outcome and any imposed disciplinary sanctions, as well as information on their right to appeal the decision.

By clearly and fairly communicating the outcome and following a fair and lawful procedure, you can ensure a just resolution to the disciplinary process and minimise the risk of future legal disputes.

Employment tribunal considerations

If an employee feels they have been unfairly dismissed on the grounds of gross misconduct, they have the right to lodge a claim with an employment tribunal—if they have had 2 years of service or the dismissal is automatically unfair.

The employment tribunal will consider all aspects of the case, including:

• The investigations conducted
• The process taken
• The information provided to your employee about the disciplinary procedure and possible sanctions
• The reasonableness of your response to the misconduct

Fairness of dismissal

The fairness of a dismissal hinges on whether you follow fair procedures and respond reasonably to the alleged misconduct. This includes:

• Conducting a thorough investigation
• Holding a disciplinary hearing
• Providing your employee with a chance to present their case
• Taking into account any mitigating factors

Reasonable employer response

A reasonable employer response to gross misconduct allegations takes into account factors like:

• The employee’s service tenure
• Past conduct
• The degree of the misconduct
• The employee’s disciplinary history
• Their role within the organization
• Any mitigating factors

Considering these factors when determining the appropriate disciplinary action to take is an essential step to ensure that the outcome is fair.

Acas Code and Guide

The Acas Code of Practice offers extensive guidance on following fair procedure and helps to reduce the likelihood of tribunal proceedings in gross misconduct cases.

In the case that there is a tribunal proceeding, the employment tribunal may increase compensation by up to 25% if you unfairly dismiss an employee without following the Acas Code.

So, it’s important to make sure your disciplinary policy is in line with the Acas Code of Practice, this can ensure a fair and lawful process when investigating and addressing gross misconduct allegations.

Fair Procedure

Addressing gross misconduct allegations requires following the Acas Code and your disciplinary policy, to ensure a fair procedure.

Reducing tribunal risk

To mitigate the risk of tribunal proceedings, you should follow the Acas code to ensure a fair and lawful process while investigating allegations of gross misconduct.

Get help with gross misconduct with BrightHR

Understanding and properly handling gross misconduct is essential for you to maintain a safe and productive work environment.

It's crucial for you to remain vigilant and proactive in addressing gross misconduct allegations and to always strive for fairness and transparency in your disciplinary procedures.

With BrightHR you can access a direct line to employment law specialists who are available 24/7 and ready with helpful advice to deal with any queries you may have.

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Frequently Asked Questions

What constitutes gross misconduct?

Gross misconduct is a serious breach of an employer's rules and can include theft, fraud, physical violence, bullying, damaging company property, health and safety breaches, incapacity in the workplace due to drugs or alcohol and serious insubordination. Employers may choose to dismiss an employee immediately for gross misconduct if they follow a fair procedure.

Can I fire an employee over cases of gross misconduct?

In cases of gross misconduct, such as theft or violence, employers have the right to dismiss employees without notice. This dismissal should be done fairly, with evidence and a chance for the employee to respond before making decisions. If proven, this could lead to the summary dismissal of an employee from their position.

What is termination due to gross misconduct?

Gross misconduct is an act that is so serious that it justifies immediate dismissal without notice. Examples of gross misconduct include theft, fraud, physical violence, gross negligence and serious insubordination. Dismissal must still follow a fair procedure in order to be valid.

How can I minimise the risk of legal claims related to gross misconduct?

Employers can reduce the risk of legal claims by conducting a fair and lawful investigation into misconduct allegations, adhering to the Acas Code of Practice and considering mitigating factors.

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