09 Sep 2020
Most employers struggle when they're asked to define gross misconduct.
Some business owners use the term flippantly. Others use it 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 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 in nature 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 gross misconduct examples are:
- Intoxication while at work
- Violence at work
- Serious health & safety breaches
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. 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
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.
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