How to deal with employee gross misconduct

Gross Misconduct is serious misconduct conducted by the employee.

Gross misconduct is misconduct so serious as to justify summary dismissal of an employee (summary dismissal is an immediate dismissal of an employee without notice).

Whether a particular act constitutes gross misconduct or not depends on the particular circumstances of the employer and the work the employee is carrying out.

Common acts of gross misconduct include theft, fraud, physical violence, serious negligence or serious breach of health and safety regulations.

Is the employer is entitled to dismiss the employee immediately for Gross Misconduct?

The employer will have to be careful if he decides to dismiss the employee immediately for gross misconduct as the employee can take the employer to Employment Tribunal to challenge any dismissal. The employer will have to show in the tribunal that it acted with a “range of reasonable responses” and it was, therefore, fair and reasonable to dismiss the employee immediately in the circumstances.

When deciding whether the dismissal was fair the Employment Tribunal will consider the following factors:

• Was there a genuine belief by the Employer that the employee was guilty?
• Following on from the Employers investigation was it reasonable for the Employer to hold this belief?
• Was the Employer’s investigation of the alleged offence properly investigated?
• Was the Employee provided with all the information obtained through the investigation?
• Did the employee have a fair opportunity to put forward their case?
• Was the employee allowed to be accompanied by a work colleague or trade union representative?
• Was the disciplinary hearing chaired by someone who was impartial?
• Was the employee given time to prepare for the disciplinary hearing?
• Were there any mitigating circumstances that could have been taken into account to explain the employee's actions, eg. provocation, ignorance, family or health problems?
• Were any alternatives to dismissal considered?
• Was the employee advised of the right of appeal and given an opportunity to appeal against the dismissal decision?
• Have you followed the procedures laid down in any contract of employment staff and disciplinary handbook?
• Was your decision one within a range of responses that a reasonable employer might make?

In summary, if you are an employer and believe that an employee has committed an act of gross misconduct you should check the terms of any written employment contract with the employee and ensure you stay in line with that, you should also carry out a proper investigation, arrange a disciplinary hearing, give the employee (with the option of being accompanied by a colleague or friend) the opportunity to put his (or her) case, and to impartially decide the outcome, to properly communicate this, give the employee the ability to appeal.

If you do not follow these principles you could find you are still liable for unfair dismissal even though your underlying decision was fair.

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