Gross Misconduct: Everything You Need to Know

Nicola Mullineux

Nicola Mullineux

blog-publish-date

14 Aug 2018

blog-read-duration

Most employers struggle when they're asked to define gross misconduct.

Some business owners use the term flippantly—and often incorrectly—when of one their employees commit a minor indiscretion.

What is gross misconduct?

There is no strict legal definition of gross misconduct. But the Government defines gross misconduct as "theft, physical violence, gross negligence, or serious insubordination".

But it can also refer to any act that destroys the employer-employee relationship.

Just to be safe, it's worth you outlining what behaviour you consider to be gross misconduct in your employment contracts or in your company's staff handbook.

Doing both of these will help you later on if you have to face an unfair dismissal claim.

What is the difference between misconduct and gross misconduct?

Misconduct is behaviour that's unacceptable in the workplace, but that doesn't necessarily damage the reputation of the business.

Some examples of misconduct include:

  • Persistent lateness.
  • Unauthorised absence.
  • Misuse of workplace facilities.

Gross misconduct, on the other hand, can cause palpable damage to the business. Some gross misconduct examples are:

  • Intoxication while at work.
  • Violence at work.
  • Serious health & safety breaches.
  • Bullying.
  • Harassment.
  • Discrimination.

What is the best approach when dealing with gross misconduct?

Set out what constitutes gross misconduct in your employee handbook, but make sure you make clear that your list isn't exhaustive.

You want to make sure you avoid being unable to act on an employee's behaviour due to excluding their behaviour from a comprehensive list. Next, investigate any allegations. Interview any relevant witnesses.

You might decide it's best to suspend the employee against whom there are allegations. If you suspend them, do so on full pay. And make it clear that a suspension is not a sanction—you're just taking them out of the limelight, so to speak.

Doing this could also prevent any further misbehaviour.

The disciplinary hearing

If following your investigation, you suspect that your employee has indeed committed gross misconduct, invite them to a disciplinary hearing. Inform them of the allegations made against them.

Take minutes of all proceedings, and if a new piece of evidence comes to light, adjourn the hearing and investigate appropriately. Once the hearing is over, avoid making an instant decision.

Give yourself time to review the case. Once you make your decision, inform your employee in writing. Explain how and why you reached your decision, and let them know that they have the chance to appeal. If you found your employee guilty of gross misconduct, you can dismiss them without notice.

But unlike any sensational stories, it's not an on-the-spot dismissal, because you must ensure you follow a fair and reasonable disciplinary procedure.

And this, of course, means allowing your employee the right to appeal. Without following a fair procedure, you leave yourself open to an unfair dismissal claim.

Always keep written evidence of all proceedings, and ensure that you follow fair procedures, such as those in line with the Acas Code of Practice.

Talk to an Expert

Got a problem related to gross misconduct, or another workplace HR issue? Call Croner's employment law experts today on 01455 858 132.

About the Author

Nicola Mullineux

Nicola Mullineux, as Group Content Manager, leads a team of employment law content writers who produce guidance and commentary on employment law, case law and key HR developments. She has written articles for national publications for over 10 years and regularly helps to shape employment of the future by taking part in Government consultations on employment law change.

linkedin

Nicola Mullineux

Free to Download Employer Resources

  • Letter Informing Employee they are to be Dismissed for Gross Misconduct

    FREE DOWNLOAD

    Letter Informing Employee they are to...

    Read more
  • Letter Informing Employee they are to be Laid Off

    FREE DOWNLOAD

    Letter Informing Employee they are to...

    Read more
  • Social Media Policy Template

    FREE DOWNLOAD

    Social Media Policy Template

    Read more
  • What is a Competitive Salary?

    BLOG

    What is a Competitive Salary?

    There’re a number of factors that determine an employee’s appointment to your or...

    Read more
  • Benefits of Diversity in the Workplace

    BLOG

    Benefits of Diversity in the Workplac...

    Inclusivity and a fair working environment is a goal many employers strive for t...

    Read more
  • Avoid Discriminating Due to Disability

    BLOG

    Avoid Discriminating Due to Disabilit...

    Last month it was found that there had been a massive 37% rise in disability dis...

    Read more
  • Numark

    CASE STUDY

    Numark

    Numark serve as a virtual head office for independent pharmacies on the high str...

    Read more
  • Gilmour Quinn

    CASE STUDY

    Gilmour Quinn

    Gilmour Quinn Financial Planning Ltd is, as the name suggests, a small financial...

    Read more
  • Wardman Brown

    CASE STUDY

    Wardman Brown

    "I would say it has has a noticeable impact, in particular it has improved the H

    Read more

Ready to focus on what you do best?

Get your free consultation and speak to an expert today.