If you manage a team of staff or own a business, there may come a time when the actions of one of your employees are so outrageous that their position with your organisation becomes untenable. Should one of your employees have behaved in such a way that makes a continued relationship impossible, you may be in a position to terminate their employment for gross misconduct. If the proper procedures are followed – something you can ascertain with the help of employment solicitors – the dismissed employee may lose their entitlement to notice pay or payment in lieu of notice.
Dispelling the myths surrounding gross misconduct
There are some employers who believe that a summary dismissal for gross misconduct means that employment can be terminated instantly. Whether your employee has been caught assaulting a colleague or stealing, there is no legal justification for terminating employment on the spot. Although emotions may be running high, your employee is still entitled to due process. And failure to follow the process – either according to your company’s guidelines or the minimum legal requirements – could leave you susceptible to a claim for unfair dismissal.
See also: The Small Business guide to HR [PDF]
What is gross misconduct?
What constitutes gross misconduct is not something that has been clearly defined by employment law. Individual employers will need to clearly define the company’s specific definition of gross misconduct in employee contracts or the company’s employee handbooks.
There should be a clear and comprehensive definition of what constitutes gross misconduct. And although the term can be vague, gross misconduct could be considered as any actions that are so serious that they go to the root of the employment contract. A good starting point is to contact an experienced employment lawyer who has a thorough knowledge of all the complex issues involved. You can then minimise the risks of your former employee having grounds for an unfair dismissal case. However, most companies regard the following behaviours as examples of gross misconduct:
- Being under the influence of alcohol or illegal drugs whilst at work
- Violent behaviour
- Threatening behaviour
- Theft or fraud
- Sexual harassment
- Criminal activity
Depending on the type of business, there may be some more specific behaviours and actions that constitute gross misconduct, but they should be listed in an employee’s terms and conditions of employment, or in a non-contractual employee handbook. An expert employment solicitor can help you to identify those behaviours and word them in a way that avoids ambiguity.
What should you do if gross misconduct is suspected?
It is important to have a disciplinary procedure in place that suits the needs of your business. However, it must be followed to the letter if you are going to avoid potentially costly claims for unfair dismissal. If your company’s procedure makes provisions for an employee’s suspension, that should be your first act after learning of potential gross misconduct.
You should then perform some detailed investigations, including collecting witness statements from those involved in the incident or those who were innocent bystanders. You should give the incident due consideration, and invite the employee back for a disciplinary meeting in writing. Best practice involves giving the employee 48 hours’ notice of the meeting, offering your employee the chance to have a colleague or trades union representative present and explaining the employee’s right to appeal.
Once you have dismissed your employee, you should put the reasons in writing, along with details of the company’s appeals procedure. If you follow these basic guidelines, and you are reasonably certain that the employee is guilty of gross misconduct, you should be able to protect yourself from claims that the process was unfair. However, you must follow your own company’s specific guidelines on gross misconduct and the disciplinary process at all times.
What happens if the employee files a claim for unfair dismissal?
Claims for unfair dismissal now go through an initial review process, and claimant must now pay a registration fee to file employment tribunal claims. In many cases, this has prevented spurious claims from reaching a judge. However, if you are called to a tribunal you will need to demonstrate that the dismissal was fair and reasonable. If you followed the procedures set out in your employee’s conditions of employment, and the behaviour of the employee made the decision to dismiss a reasonable one, you should be able to successfully defend a claim of unfair dismissal.
Terminating employment should always be a case of last resort, and you should consult with employment lawyers before making such a drastic decision. However, where an employee’s actions are so egregious that trust is permanently lost, dismissal for gross misconduct may be the only viable option available to you.
