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Employment law and gross misconduct proceedings
Gross misconduct refers to a workplace misdemeanour which is considered so serious that immediate dismissal of the perpetrator is justified. The employee can be dismissed after the first instance of such misconduct without being given any notice or pay in lieu of notice.
Exactly which acts constitute gross misconduct are likely to be defined by each employer in their employment contracts, but a typical list would include:
- Drinking or using drugs during work hours
- Fighting or committing acts of violence against other staff members or customers
- Stealing from the company or its clients
- Sabotaging the company or company equipment
- Sexually indecent behaviour
Other more industry-specific offences may also be mentioned on a case-by-case basis, and there is of course an element of subjectivity in judging what, exactly, is gross misconduct.
Contentious gross misconduct
If you have been dismissed from employment for an offence not typically seen as being gross misconduct, then the chances of success in an employment tribunal are likely to be high. Your employer will be required to demonstrate that, given the circumstances, the decision they made was one that any reasonable employer was likely to have also made.
It is important to note, however, that employers can use their discretion when it comes to gross misconduct, so if you did something unpleasant which was not specifically forbidden by your contract but which obviously rendered your continued employment untenable, your case may well be a weak one. However, if your employer failed to follow the appropriate procedures, you may still have a case.
If an employer is taken to an Employment Tribunal over a case of gross misconduct, the outcome may hinge on whether the incident was investigated properly, allowing all sides to tell their story.
Gross misconduct dismissal procedure
Even when an employee is accused of a particularly unpleasant act in the workplace, the employer is still required to follow the rules when it comes to dismissing them. The following procedure should be followed by employers when terminating an employee for a purported act of gross misconduct:
- Undertake a thorough investigation into the alleged act
- Carry out interviews with the culprit and any witnesses who were present at the time
- Supply details of the offence in writing to the employee, along with any evidence which is to be used against them
- Call a disciplinary hearing, at which the employee should have the right to accompaniment by a colleague or trade union official. The hearing must be conducted by an impartial person who is not otherwise involved in the investigation. Everything said during the hearing should be recorded
- Make a decision on the issue following the hearing, bearing in mind any mitigating circumstances
- Notify the employee of the decision and inform them of their right to appeal
- Set up an appeal hearing if they do wish to contest the issue
If this procedure is not followed properly, then it may be the case that the employer is in breach of the law, and the dismissed employee may be able to make a claim against them.
If you believe that you have been unfairly accused of gross misconduct, you should consider trying our Instant Law Line service. Our service offers unlimited and instant legal advice over the phone, for only £7.99 a month.
You could be finding out where you stand with regards to your gross misconduct case in 5 minutes' time. Click here to get started.
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