As your business grows and you begin to take on staff, the potential for employment issues with it. One such issue is gross misconduct.
Handling misconduct in the workplace is part of the remit of someone managing a business, so you should ensure you follow a fair procedure. Failure to do so can leave you open to litigation, facing a wrongful dismissal claim or unfair dismissal.
No employer wants to end up at an employment tribunal, so Employer Advice is on hand to help. We have a free letter template used for confirming summary dismissal (for gross misconduct). We have also outlined exactly what gross misconduct is and how it should be managed.
Read on for more advice on handling a serious disciplinary matter or for more immediate support, contact our expert team at Employer Advice.
What constitutes gross misconduct?
For one of your employees’ conduct to constitute gross misconduct there are a number of factors. What amounts to gross misconduct will be different depending on your company, industry sector and business operation.
There are, however, certain behaviours that are widely considered gross misconduct. These include:
Theft, fraud and dishonesty
Theft of company property, fraud and dishonest behaviour from your employees are all generally considered gross misconduct. In the worst cases, this behaviour can be extremely costly. Your business may suffer reputational damage and your staff retention may dip.
This type of serious insubordination can cover, but isn’t limited to:
- Payroll fraud.
- Insurance scams.
- Invoice fraud.
- Theft of company property.
- Theft of employee/client property.
- Information theft.
- Bribery and corruption.
- Inappropriate use of company credit card.
- Misappropriating expenses.
- Overcharging customers.
In all instances, your employee would likely be dismissed with immediate effect.
Offensive behaviour
Offensive behaviour could occur in many different scenarios. A worker could display offensive behaviour towards a client or there could be a dispute between colleagues.
You could opt for a summary dismissal procedure if the incident involved:
- Physical violence.
- Aggressive or intimidating behaviour.
- Threats of violence.
- Dangerous horseplay.
In any instance there must be a full and fair investigation to prove serious breaches of the employee’s employment contract.
Breaching health and safety regulations
In many cases, it is considered gross negligence if an employee fails to adhere to health and safety regulations. This may justify summary dismissal.
Examples of this include:
- Removing or not using machinery guards;
- Persistently refusing to wear Personal Protective Equipment (e.g. a hard hat on a building site); and
- Dangerous driving on the work site.
As you can see, not all instances of gross misconduct cover a single incident. Gross misconduct covers persistent breaches of disciplinary rules as long as there is sufficient evidence.
Damage to company property
If one of your employees causes wilful or deliberate damage to your company property then this can lead to immediate dismissal. The damage may not have been physically caused by the employee, but could be as a result of gross negligence.
Company property is anything from your company equipment, personal devices and the company premises.
Use of alcohol or drugs in your workplace
To warrant instant dismissal, your employee may be using illegal drugs in the workplace. In most cases, an employee may receive prior warnings from line management, but such conduct will be considered gross misconduct.
This includes:
- Serious incapability due to drinking or taking drugs whilst on duty.Possession of drugs or taking drugs on the employer’s premises.
- Buying or selling drugs on the employer’s premises.
If you feel like an employee might have an issue, speak to that employee immediately. You could potentially offer them access to EAP before gross misconduct arises.
Does gross misconduct lead to a summary dismissal?
Many employers struggle to confidently identify gross misconduct. This is largely because there is no strict legal definition. However, if an employee displays any of the above behavioural traits, particularly after following a disciplinary process, summary dismissal is often the only option.
Things like physical violence are always going to be a serious insubordination, but some are less obvious. Be sure to clearly define gross misconduct in your employee handbook, the list we have provided is non exhaustive.
Should I have a disciplinary hearing for gross misconduct?
If you find that an employee is guilty of gross misconduct then it is important that you follow a fair procedure.
Conduct a thorough investigation and hold a disciplinary hearing before you decide on summary dismissal to avoid any unfair dismissal claims against you.
You might then decide on dismissal without notice or payment in lieu of notice.
How can I prevent an unfair dismissal claim?
If you choose summary dismissal as a response to gross misconduct you need to consider whether an employment tribunal would rule the dismissal as fair.
Here are some basic guidelines:
- You must genuinely believe that the employee has committed gross misconduct.
- You need evidence that you had reasonable grounds for believing this.
- You should demonstrate that you have followed a fair process and carried out a thorough investigation.
- You have to show the dismissal falls within a “band of reasonable responses”.
A tribunal will look broadly at the case, including things like your business’ size and resources available.
An employee has to have worked for your business for two years to be eligible to submit a claim to an employment tribunal for unfair dismissal.
What is the difference between misconduct and gross misconduct?
There is a marked difference between misconduct and gross misconduct. Misconduct refers to behaviour that’s unacceptable in your workplace. Gross misconduct, as we’ve covered, refers to instances that cause discernible damage to the business.
Examples of misconduct include:
- Misuse of workplace facilities.
- Persistent lateness (which can become gross misconduct if frequent enough).
- Unauthorised absences.
The key to handling any conduct issue is maintaining a fair process.
What is the best approach when dealing with gross misconduct?
Making it clear to your employees that certain unacceptable behaviour may be classed as gross misconduct is important. You should set out exactly what constitutes gross misconduct in your employee handbook, ensuring that you note the list isn’t exhaustive.
Your employee handbook should also highlight your business’ disciplinary policies. The goal for business owners is to make sure you don’t leave yourself unable to act on a serious behaviour issue because you have excluded it from your list of gross misconduct examples.
The last thing you want is for your employee to claim unfair dismissal later down the line because of a poorly worded policy.
Whilst investigating a case of gross misconduct it’s important that you don’t jump to a summary dismissal straight away. Interview any relevant witnesses, investigate any allegation and be thorough.
If you decide it is beneficial to suspend the employee whose allegations have been made against you, do so on full pay. You should also make it clear that a suspension is not a sanction. Doing this could prevent any further insubordination and help with the morale and productivity of other employees.
Is there a template letter for summary dismissal?
A summary dismissal letter is an important document if you choose to dismiss an employee for gross misconduct.
A dismissal letter will contain:
- Information about your disciplinary measures.
- Explanation as to what constitutes misconduct.
- Decision to summarily dismiss on the grounds of gross misconduct.
- All responses from both the employer and employee.
- Any details about pay (such as pay in lieu).
- Details of the right to appeal.
You can download a free template at the end of this article.
How can Employer Advice help with gross misconduct?
Employer Advice is an advice service dedicated to supporting UK businesses. We only offer support to employers, so you can be assured that we uphold your organisation’s best interests.
If you have challenges in your business with your disciplinary process or you’re currently handling an instance of gross misconduct, then why not contact our team of dedicated HR and employment law experts or download our gross misconduct letter template.
With over 80 years of experience in helping employers take the stress of handling their HR and employment law obligations. Get in touch with one of the Employer Advice experts on 0800 470 0613.