April 29, 2019

Gross misconduct is a serious act of misconduct by an employee which can justify their dismissal without notice.

It includes behaviours, ranging from the unprofessional to the unethical, all of which fall short of the standards set out in company terms and conditions of employment.

Gross misconduct can include events that happen not only at work, but also (in certain circumstances) outside of work (e.g. if an employee posted racist messages on social media which could be seen by customers).

Gross misconduct is harmful to employer-employee relations and destroys trust in the workplace.

People who commit gross misconduct often receive a summary dismissal.

This is a special kind of termination in which a person must leave work, without notice, and without pay in lieu of notice.

Often in cases of gross misconduct, the severity of the behaviour means that it is no longer safe or appropriate for a person to remain in the workplace. 

How Does Gross Misconduct Differ From Misconduct?

We’ll discuss examples of gross misconduct later but, in general, it involves things like offering or accepting bribes, deliberately damaging property or causing injury through negligence, theft or fraud, physical violence, insubordination and so on.

Misconduct, on the other hand, refers to more minor offences, such as turning up to work late or not following instructions properly.

There isn’t always a clear line between gross misconduct and misconduct.

An employee, for example, could be chronically late for work because he or she has issues organising their time correctly.

But equally, their behaviour could be to frustrate their manager or fellow employees deliberately. In the former case, it’s an issue of misconduct, but in the latter, it could be deemed gross misconduct because it may constitute deliberate sabotage.

How Should Company Directors And Managers Deal With Issues Of Gross Misconduct?

It’s never a pleasant experience finding out that one of your people may have done something that counts as gross misconduct.

However, it’s good policy to know what to do in such an event.

Suspension

The first decision you’ll need to make is whether to suspend the individual or not.

You may need to suspend somebody if they are a risk to themselves or other people in the workplace.

You may also need to suspend somebody if you believe that their continued presence will influence key witnesses or that they will try to conceal evidence of their wrongdoing.

If you don’t suspend the employee immediately, you'll need to conduct a risk assessment to show that you have good reasons for allowing them to remain at your premises.

During the meeting with the employee, it’s important to emphasise that the suspension is not a disciplinary sanction.

It’s a way of protecting the employee and their fellow colleagues, giving you time to investigate and collect evidence related to the case.

Investigation

The next step is to investigate and look for evidence relevant to the allegations.

The investigation should be approached with an open mind and you should consider evidence that could help the employee or explain the apparent misconduct.

If you find evidence that supports the case against the employee, then you need to invite them to a disciplinary hearing.

The employee should be sent a written invitation to the disciplinary which clearly sets our the allegations against them.

Always mention that the employee can have a trade union or colleague representing them at the hearing.

Occasionally, employees may have additional rights, depending on their contract of employment.

Disciplinary Hearing

It is important that, where possible, a different person deals with the investigation and disciplinary stages.

At the disciplinary hearing, the individual dealing with the case will have an opportunity to discuss what the employee is alleged to have done wrong and the evidence that has been collected.

Once the evidence has been collected, the meeting should be adjourned while the the facts are considered and a final decision is made.

The Decision

If the decision is to dismiss the employee, the employee should be promptly notified of the decision together with an explanation as to how the decision has been reached.

Examples Of Gross Misconduct

Context is very important when determining whether something amounts to gross misconduct.

Ideally, your disciplinary policy should set out clear examples of what will be classed as gross misconduct.

Bear in mind however that just because something is listed as gross misconduct will not automatically make it fair.

For example, lateness may be listed as gross misconduct however this will normally be dealt with as “ordinary” misconduct and it could leave you open to a complaint of unfair dismissal.

Misconduct Related To Drug And Alcohol Induced Incapacity

In some sectors, it is common for workers to go out for a drink with colleagues at lunchtime.

But some employees may take their drinking too far, making them unable to carry out their work properly once they return.

If an employee is drunk, this could be grounds for gross misconduct.

Likewise, an employee may be caught using or selling illegal drugs on your premises.

Again, this would constitute an act of gross misconduct.

Misconduct Related To Drug And Alcohol Induced Incapacity

Damage To Property

Damage to business property is an everyday occurrence at many firms.

Company premises have to endure intense daily use and wear and tear is inevitable.

However, there are circumstances in which damage to property by an employee might constitute gross misconduct.

The first instance is where the damage is deliberate: that is, an employee vandalises or destroys company property, including data.

The second is where damage occurs to company property because of employee negligence.

For instance, when business property incurs damage because a worker leaves equipment unsupervised.

Misconduct Related To Damage To Property

Offensive Behaviour

Offensive behaviour includes things like bullying, sexual harassment, dangerous horseplay and threats of violence.

Offensive behaviour can occur between employees, between workers and management, and between workers and employees.

Offensive Behaviour

Failing To Adhere To Health And Safety Rules

As a director or business owner, you take the health and safety of your workers very seriously.

But there may be some people in your organisation who do not.

Failing to adhere to health and safety requirements could amount to gross misconduct.

A colleague who does not wear a high-visibility vest in the warehouse or one that does not use the appropriate safety equipment when using machinery, for example, may be liable to allegations of gross misconduct.

Likewise, a worker who drives dangerously on your work site may also fall foul of gross misconduct rules.

Failing To Adhere To Health And Safety Rules

Theft And Fraud

As any seasoned business owner knows, both customers and colleagues can commit theft and fraud.

Theft includes stealing things from the business, from other employees, or customers.

It would be gross misconduct if an employee took money out of the cash register however context is important and you should investigate before making any decision (e.g. an employee may have taken £10.00 out but on investigation you realise that they put ten £1.00 coins in from their own pocket to make change).

It would also be gross misconduct is they stole money from the locker of a fellow employee.

Theft And Fraud

Other Examples of Gross Misconduct

Gross misconduct also includes things like illegally selling private company data or making fraudulent expenses and overtime claims.

It is also prevalent in company finance departments. Company accountants and executives may falsify accounts and fail to make the proper records of company accounts.

If this happens, then you may have grounds for summary dismissal.

Gross misconduct is, unfortunately, something that almost all companies must deal with at some point.

But once you understand what it is and how to deal with it, you’re in a much better position to take the appropriate course of action.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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