What is gross misconduct and how is it dealt with?

No one likes having to deal with serious conflict, especially in the workplace. But if a nasty situation ever does occur, being properly prepared is the only way to ensure a fair and just outcome for all parties involved – the employee, the employer, any victims in the situation, and the business. Here’s a complete guide on what to do in the case of gross misconduct.

What is Gross Misconduct?

Gross misconduct refers to any certain behaviour from an employee that is so serious it justifies their complete dismissal from work, without notice or pay. This kind of ‘firing’ is known as summary dismissal. It should only take place once an investigation and a disciplinary hearing has been held to determine whether the employee’s behaviour was gross misconduct.

As ‘gross misconduct’ is a somewhat vague term, it’s crucial for employers to get to grips with what really constitutes behaviour of this kind for two reasons: serious actions need to be reprimanded but getting it wrong can land businesses in hot water as any fired employee has the right to claim unfair dismissal.

What is Classed As Gross Misconduct?

Gross misconduct can be classed as any damaging, illicit, offensive, or insulting behaviour from an employee, for example:

• Physical violence
• Bullying
• Damage to property or premises
• Theft or fraud
• Discrimination or harassment
• Serious insubordination
• Offering or accepting bribes from another business
• A breach of health and safety
• Misuse of a business’s name or property
• Accessing pornographic or offensive material online while at work, or on company devices
• The creation of or activity in a competing business
• Misuse of confidential information
• Bringing the business into serious disrepute
• A breach of confidence
• Inflicting damage or injury through negligence
• Taking drugs or drinking alcohol at work, or else working whilst under the influence

This is not a complete list, as gross misconduct can also refer to any other behaviour deemed serious enough to constitute a dismissal.

What’s the Difference Between Misconduct and Gross Misconduct?

No one’s going to be perfect at work every day of the week, so where do you draw the line between just ‘misconduct’ and ‘gross misconduct?

Examples of minor misconduct might be frequent lateness to work, failure to complete tasks on time, or consistently turning in a poor quality of work. These behaviours, while not ideal, are not directly causing harm or distress to other employees, the property, or the organisation as a whole. In order to be considered gross misconduct, the behaviour has to be substantially more serious.

Dealing With Gross Misconduct

If a situation has been brought to your attention that you think falls in the bracket of gross misconduct, the first thing to do is decide whether or not you want to suspend the employee with full pay.

If you think that the employee could pose a threat to your business, themselves, or the people around them, this is where suspension might be a good idea. If there is no immediate threat, you can make a judgement call on whether to keep the employee at work while you organise a disciplinary hearing.

Disciplinary Hearing

The next step is to gather the evidence, which you’ll need in order to make a case against the employee during the hearing. When you’ve got sufficient evidence to support the allegation that’s been made, you’ll then have to officially invite the employee to the disciplinary hearing via letter. Include details of the allegation, and make sure to inform them of their right to be accompanied by a colleague or trade union representative.

At your hearing, you’ll need a chairperson and someone to take notes, which you can then keep in your records. These parties should be impartial.

It’s a good idea to adjourn your hearing before deciding on an outcome so that you can properly assess the situation. Consider any mitigating factors – how has the employee’s behaviour been up until this point?

It’s important to note that gross misconduct does not always lead to a dismissal. After the hearing, you might find that the panel comes to an agreement on a different disciplinary sanction.

If you come to the decision that it’s time for them to leave, you’ll then have to inform them in writing. Make sure to include:

• Details of their gross misconduct.
• The penalty – ie. their dismissal, when this will take place, and whether they’ll receive any pay.
• Your reasons for taking action.
• The timescale for them to lodge an appeal, and details of how to do this should they want to.

Unfair Dismissal

If the situation is not dealt with in the proper way, an employee might make the decision to file for unfair dismissal.

Any employee has the right to file a claim of unfair dismissal against an employer. This means an employment tribunal will be held to investigate the situation, with an external party present to determine whether the dismissal was fair or not. Tribunal fees were abolished in 2017, so it’s now much easier for these claims to be made.

The tribunal will consider factors such as:

• Did you give the employee a chance to make their case?
• Did you provide the employee with all the necessary information?
• Did you give the employee ample time to prepare for their hearing?
• Did you have an impartial party present at the hearing?
• Did the offence count as ‘gross misconduct’ as set out in your company policies?
• Did you inform the employee of their right to appeal?
• Have you dealt with other similar instances in the same way?

This is where it’s crucial that you kept hold of all your records, so you can present them as evidence if the situation arises. This includes:

• Employment contract.
• Staff handbook.
• Company policies.
• Evidence of the gross misconduct.
• Copies of letters and warnings to the employee.
• Witness statements.
• Appeal documents.

If you’re having to deal with a case of gross misconduct in the workplace, we’ve got your back. The team here at The HR Dept is fully trained, experienced, and ready to deal with anything you might be going through, with on-hand support designed to bring you the peace of mind that your situation will be dealt with swiftly and professionally. Get in touch today to hear more about how we can help you.