What is gross misconduct at work? A guide for employers

Understanding what qualifies as gross misconduct at work is essential for any employer facing workplace challenges.

In this article, we explore the key aspects of gross misconduct with examples of when it might occur. We'll also cover sackable offences and offer practical advice to help employers manage disciplinary issues effectively.

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What qualifies as gross misconduct?

Gross misconduct happens when a member of staff conducts themselves poorly and in a manner so severe that they warrant immediate dismissal without notice or severance pay, (even for a first offence).

Such actions fundamentally undermine the trust and confidence necessary for a productive employer-employee relationship, making it untenable to continue working together. In this sense, it's very difficult to avoid dismissal for gross misconduct.

It’s a common misconception that "summary dismissal" means you can terminate an employee on the spot. In reality, a fair gross misconduct procedure must be carried out to avoid potential claims of unfair dismissal.

The definition of gross misconduct can vary by company, industry and business type. However, there are several actions that are generally considered gross misconduct.

If an employee carries out any of the behaviours listed below, it's a good idea to get in touch with our team at Neathouse Partners, so we can guide you through how to handle these situations.

What are examples of gross misconduct?

Fraud and theft

• Stealing company equipment or cash
• Stealing other personal items from colleagues
• Illegally accessing or sharing company secrets or data
• Falsifying accounts or time records
• Falsifying expenses claims
• Falsifying overtime claims

Offensive conduct

• Aggressive behaviour, harassment, bullying or fighting
• Violence or threats of violence
• Severe incapacity due to alcohol or drug use
• Possession or use of drugs on company premises
• Buying or selling drugs while at work
• Negligence or extreme insubordination

Health and safety violations

• Removing or neglecting machinery guards
• Refusing to use Personal Protective Equipment (PPE)
• Engaging in dangerous driving on-site
• Putting other colleagues in danger

Property damage

• Deliberate or reckless damage to property
• Gross negligence causing substantial property loss or damage

Is there a notice period for gross misconduct?

An employer doesn't have to give an employee a notice period if they dismiss them for an act of gross misconduct.

You should always review carefully that the action the employee is being dismissed for actually counts as gross misconduct. If it doesn't, this could put your company at risk of being taken to the employment tribunal for wrongful dismissal.

An employee can do this regardless of how long they've worked for you. It's really important to conduct an investigation and to gather evidence that supports your actions for dismissal.    

What evidence is needed for gross misconduct?

As an employer, you'll need to demonstrate that you genuinely believed and had reasonable grounds to believe that the employee was guilty of the misconduct.

This belief must be based on a reasonable investigation, a principle known as the Burchell Test. A tribunal would not consider whether the employee was actually guilty, but rather whether the process and belief were fair.

To have reasonable grounds for your belief as an employer, you must demonstrate that:

• You genuinely believed the gross misconduct occurred.
  
  
• You conducted a thorough investigation and had sufficient evidence to support that belief (such as witness statements, meeting records, performance records, medical records, emails, reports, notes from interviews, etc.).
  
  
• Once these criteria are met, you must also show that your response was within the “range of reasonable responses,” for dealing with the misconduct. A tribunal would for example evaluate whether your actions were reasonable given the circumstances, including whether a lesser disciplinary action, such as a demotion or final warning, might have been more appropriate.
  
  
  

Is shouting or swearing at a manager gross misconduct?

Serious insubordination is a form of gross misconduct at work where an employee outright refuses to follow instructions from a supervisor or manager, breaking the trust between them. Such behaviour often justifies summary dismissal, or termination without notice. Rude, aggressive or threatening behaviour qualifies as serious insubordination.

It should be noted however that the context within which any shouting took place would need to be carefully examined, as well as the reasons why the employee felt they needed to conduct themselves in this manner.

Under the Equality Act 2010, offensive language that targets protected characteristics (race, religion, gender identity, age, disability, marital status, sex, sexual orientation, pregnancy or maternity) is illegal if deemed discriminatory or harassing.

Even if it was meant as 'banter,' such behaviour can lead to serious legal consequences for employers.

Employers must take reasonable steps to prevent harassment or bullying. This includes providing training on diversity, equality and conduct. Failure to do so can result in the employer being held accountable for incidents that occur.

Lead by example

Managers must set a positive example and avoid using offensive language, especially during conflicts. They should de-escalate situations professionally. If an employee swears at a manager, context matters. A one-time outburst due to frustration might not warrant dismissal, but deliberate insubordination could be gross misconduct.

Disciplinary actions must follow fair procedures, considering the facts and company policies. Dismissal should always be a last resort.

An employee just walks out of work: is this gross misconduct?

An employee walkout is an unauthorised absence and a breach of contract. That said, employers must still pay any owed wages and entitlements, even if the employee leaves without notice.

There’s no obligation to pay for the time they missed, and after an investigation, the employee could face disciplinary action. In some cases, a walkout may be considered serious or even gross misconduct, depending on the role and circumstances.

If an employee just walks out of work, the employer should establish whether they're simply walking out in the heat of the moment because they're stressed, or whether they're leaving their role for good. 

If an employee walks out after an argument or stressful event, but doesn't clearly state they’re quitting, it’s unreasonable to treat this as a resignation. In such cases, employers should consider disciplinary action instead.

However, if the employee hands in work equipment and states they won't be returning, the employer can reasonably assume they’ve resigned.

In cases of constructive dismissal, where the employer’s serious misconduct forces the employee to resign, the employee may not need to give notice. To claim constructive dismissal, the employee must be classed as an employee, have at least two years' service (in most cases), and demonstrate a serious breach of contract, like bullying, discrimination, or non-payment.

Is sleeping at work an example of gross misconduct?

Sleeping at work can be gross misconduct, and can lead to disciplinary action or dismissal. Employers should think about the employee's past performance and possible causes before deciding how to respond.

Sleeping at work can have serious consequences, especially in high-risk roles in which staff need to operate machinery. Even falling asleep at a desk can affect productivity, and employers should address it.

Consider these factors before taking action:

• Is it a one-time event or frequent?
• How serious are the risks?
• Is it due to a medical condition?
• Are enough rest breaks being provided?

Remember that an employee with a sleep disorder or stress isn't the same as someone who’s hungover. Understanding the cause is key before deciding to take disciplinary action.

Employers can manage sleeping on the job by privately discussing the issue with the employee.

Consider their overall performance and issue a verbal warning if needed. Consider whether medical support, adjusted schedules or stress relief measures like extra breaks are needed.

Is poor timekeeping an example of gross misconduct?

Behaviours like poor timekeeping, absenteeism, misuse of workplace facilities, personal appearance issues, negligence or sub-standard work typically won't qualify as gross misconduct.

However, if the employee is a repeated offender (with persistent poor timekeeping), this could add up over time to gross misconduct.

The gross misconduct procedure

Employers must follow a full and fair procedure in line with the Acas Code of Practice for any disciplinary or grievance case. An employer's actions and the procedure they follow will be taken into account if the case were to reach an employment tribunal. Employers might want to use the same procedure for anyone legally classed as a worker.

Conduct thorough investigations and gather evidence before making decisions. Clearly communicate allegations, evidence and consequences to the employee. Ensure disciplinary actions are proportionate, considering mitigating factors. Maintain detailed documentation throughout the process, and provide a fair appeal system with an independent reviewer.

Seek legal advice from our team at  Neathouse Partners to ensure compliance