Gross misconduct is one of the most serious issues an employer will ever deal with. It is also one of the easiest areas to get wrong if you act in haste or do not fully understand employment law. For small businesses in particular, one badly handled gross misconduct case can mean a tribunal claim, considerable costs, and a huge drain on time and resources.
That is why having clear HR support, of the types offered by GAP HR, is so important.
Call us now on 01491 598 600 or Click Here to Make An Enquiry and we will be delighted to help you.
What Is Gross Misconduct?
The concept of ‘gross misconduct’ is often misunderstood. Essentially, gross misconduct refers to employee conduct that is so serious that it destroys the trust and confidence at the centre of the employment relationship. It goes beyond ordinary misconduct or even ‘serious’ misconduct. In some cases, gross misconduct can justify immediate dismissal, provided a fair process is followed.
When deciding whether an employee’s conduct constitutes gross misconduct, the key is to consider whether the behaviour makes it impossible or unreasonable for you to continue employing that person in their role, taking into account the circumstances and impact on your business. Because that test depends heavily on context, it is vital for employers to be clear in their own policies about what they will treat as gross misconduct.
Examples Of Gross Misconduct
The law does not provide a comprehensive list of the sorts of conduct that can be classed as ‘gross misconduct’. However, typical examples given by the government and ACAS include the following:
- Theft, such as stealing cash, stock or equipment, including from colleagues or customers.
- Falsifying timesheets, expenses, payroll, or key company records.
- Violence, bullying, and harassment, including serious threats of violence at work, work related events, or online.
- Serious health and safety breaches. This might stem from deliberately ignoring safety procedures, using machinery recklessly, or acting in a way that endangers colleagues or members of the public.
- Attending work under the influence of alcohol or illegal drugs.
- Serious insubordination, such as an open refusal to follow reasonable instructions in a way that puts the business at risk.
- Serious breaches of confidentiality or data protection.
- Inappropriate or offensive social media posts that clearly link back to your organisation and damage its reputation.
Your employment contracts and disciplinary policy should spell out the kinds of behaviour you will treat as gross misconduct, so that employees understand where the line is.
What Employers Should Do When Faced With Gross Misconduct
Even if an employee’s behaviour is obviously unacceptable, you cannot lawfully dismiss someone on the spot. The law and the ACAS Code of Practice require employers to follow a fair, reasonable disciplinary procedure, even in gross misconduct cases.
In outline, that usually means doing at least the following:
• Investigating The Allegations
You should promptly collate statements, CCTV, emails and any other evidence showing the employee’s behaviour. You might consider suspending the employee on full pay while you investigate, especially if there are safety, security or tampering risks.
• Inviting The Employee To A Disciplinary Hearing
Employees must be given an opportunity to put their side of the story across at a disciplinary hearing. Before the hearing, you should set out the allegations clearly in writing, including why they may amount to gross misconduct. The employee should be provided with copies of the relevant evidence, and you should clearly explain the possible outcomes, including dismissal.
• Holding A Fair Hearing
At the hearing, you must allow the employee to respond to the allegations, ask questions, and put forward their explanation. You must consider their responses and how they impact the situation properly.
• Reaching A Reasoned Decision
Once you have reviewed the evidence and considered the employee’s point of view, you must decide whether you believe that they committed the acts of which they are accused. If you are confident that they did, you should consider whether gross misconduct dismissal is within the range of reasonable responses in the circumstances, or whether a warning is more appropriate.
• Confirming The Outcome And Offering The Employee The Opportunity To Appeal Your Decision
As soon as possible after the hearing, you should write to the employee setting out your decision, reasons, and the effective date of dismissal, if applicable. You must allow the employee the right to appeal your decision and explain how they can exercise that right.
Employers sometimes feel aggrieved about having to follow such a rigorous procedure when an employee’s conduct is so obviously unacceptable that it clearly constitutes gross misconduct. However, the importance of doing so cannot be overstated. Failing to follow a fair process can lead to an unfair dismissal claim, and an employment tribunal can uplift compensation by up to 25% if you unreasonably ignore the ACAS Code. For a small business, that can be a high and avoidable cost.
If you need help with addressing a case of gross misconduct, the expert HR consultants at GAP HR are on hand to help. We will ensure that you handle the situation in line with the law and the ACAS Code, while still making clear, commercial decisions and protecting your business interests.
Call us now on 01491 598 600 or Click Here to Make An Enquiry and we will be delighted to help you.
