Gross Misconduct

Employment law and gross misconduct proceedings

Gross misconduct refers to a workplace misdemeanour considered so serious that immediate dismissal is justified. The employee can be dismissed after the first instance of such misconduct without notice or pay in lieu of notice.

It is up to the employer to define gross misconduct in the employment contracts of its workers, but things that typically fall into the category are:

• Drinking or taking drugs
• Fighting or committing acts of violence against other staff members
• Stealing
• Sabotage
• Sexually indecent behaviour

Other more industry-specific offences may also be mentioned, and there is an element of subjectivity in judging what is gross misconduct.

Contentious gross misconduct

If you have been discharged from your employment for an offence not typically found among those cited as being gross misconduct, then the chances of success in an employment tribunal may be high. This will indeed be the case if the employer cannot demonstrate that the decision was one a reasonable employer would have made and that it was understandable given the circumstances.

If an employer is taken to an Employment Tribunal over a case of gross misconduct, the outcome may hinge on whether a sufficiently thorough investigation into the alleged offence was carried out, whether the dismissed employee was given the chance to tell their side of the story and allowed adequate representation when doing so, and whether the employer adhered to the correct procedure throughout the episode (see below).

Correct procedure for employers sacking for gross misconduct

The following steps should be taken by employers to eliminate the possibility of being sued by the sacked employee:

• Undertake an investigation
• Carry out interviews with the culprit and any witnesses to the act of alleged gross misconduct
• Give details of the offence in writing to the employee along with any evidence which will be used against them
• Call a disciplinary hearing, at which the employer should have the right to accompaniment by a colleague or trade union official. This hearing should be conducted by an impartial person not otherwise involved in the investigation. Record everything that is said at the hearing in case it is needed later on
• Adjourn the hearing in order to come to a decision, and consider any mitigating circumstances before doing so
• Notify the employee of the decision and inform the employee of his right to appeal and set up an appeal meeting if necessary

It is very important to abide by these guidelines. If any one is absent from the procedure then it could be used as grounds for suing against the employer.