Gross Misconduct: Everything You Need to Know

When an employee commits gross misconduct, an employer can terminate the employee with no notice period or payment. This is referred to as summary dismissal.

When the employee receives summary (instant) dismissal, you’ll need to provide them with a contract termination letter explaining the reasons for your decision. This is an important document to write.
In this guide, we’ll take you through what to include in your letter to avoid breaking any employment laws. If you do not follow the correct procedures, employment tribunals can deem your dismissal unfair.

If you need immediate support on gross misconduct, get in touch with one of out expert advisors on  0808 501 6651

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 staff behaviour that destroys the relationship between you and the employee.

Outline what behaviour you consider to be gross misconduct in your contracts or 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 minor but still unacceptable behaviour.

Some examples of misconduct include:

• Unauthorised absence
• Misuse of workplace facilities
• Persistent lateness – This can become gross misconduct if frequent enough

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

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

Ultimately it is up to you to decide what constitutes misconduct, but you have to be consistent. In all cases, you must follow a fair process.

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 and interview any relevant witnesses.

You might decide it's best to take disciplinary action and suspend the employee against whom there are allegations of misconduct at work. 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 unacceptable behaviour.

The disciplinary hearing

The investigation should reveal whether the employee has committed gross misconduct. If you suspect they have, 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. 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.

Gross misconduct termination

If you decide to summarily dismiss an employee, you have to follow a fair disciplinary procedure.

Remember that, legally, employees can bring a claim for unfair dismissal. This is if there are any procedural flaws identified throughout the dismissal process.

If you have followed a fair process, you can begin the termination process. This involves informing the employee. As it is a summary dismissal, they will leave the business immediately and receive no payment in lieu of notice.

The ACAS Code of Practice says you should give employees the right to appeal a disciplinary or grievance outcome.

If you don’t give the opportunity to appeal, they could count this against you if the case goes to an employment tribunal.

Employee dismissal letter for gross misconduct

A significant part of a fair process is ensuring that you send the correct paperwork out to employees.

This incorporates invitations to investigation and disciplinary hearings and, ultimately, a letter of dismissal.

It’s important that you properly construct dismissal letters, as it can help to avoid misinterpretations or disputes at a later date.

You should remember the contents of a dismissal letter will be scrutinised by an employment tribunal if they make a claim. So, ensure it’s clear, succinct, and includes all relevant information needed to show your thought process behind the decision.

What to include in the letter

Strong letters will clearly state that the individual’s employment is to end and will include the reasons their behaviour has resulted in their termination.

You must clearly state the date on which employment is to end.

The letter should conclude by stating that the employee has a right to appeal against this decision, alongside the persons to contact regarding this, and how long they must pursue this option.

This letter covers

• The reason for the dismissal.
• The legal basis for gross misconduct.
• Prior warnings (if any.)
• The termination date and ineligibility for notice or a payment in lieu of notice (PILON.)
• Arrangements for holiday pay and last salary payment.
• The need to return property.
• The right to appeal against the dismissal.

By using a pre-constructed template that highlights what information is needed and where it should be placed, employers can help to ensure all necessary content is included.

As a further way of ensuring the information outlined in a dismissal letter is accurate and agreed upon by all parties, employers may also consider filling in a termination form.

The form can list reasons or the primary reason the employment is to end and can be signed by both the employee and their manager.

Expert support on dismissals with Croner

If employers are uncertain on how best to structure termination letters or forms, it is highly advisable that they seek further advice and assistance.

Our experienced employment law and HR advisors can help you navigate this difficult subject. With expert advice, you can be sure you are making the right decision.

Our experts provide free help, support, and advice tailored to your requirements. Call us for free today on 0808 501 6651