If you are being accused of gross misconduct, you will need to act quickly to understand your options and next steps. We look at some common concerns of employees facing disciplinary action at work.
What is misconduct?
Workplace misconduct relates to unacceptable actions and behaviours that justify the employer in taking punitive action against the perpetrating employee.
Misconduct at work is any form of improper behaviour on the part of an employee or member of staff that negatively impacts their work, working environment or peers, or falls short of the required ethical or professional standards, guides or codes of conduct, as accepted by a particular employer or profession. It’s essentially where an individual’s inappropriate conduct or actions breaks workplace rules. This could range from relatively minor issues such as lateness or unauthorised absences, to serious breaches of company policy, such as bullying or harassment of co-workers or failure to follow procedures or instructions correctly.
In some cases misconduct can happen outside of office hours but this still reflects badly on your organisation, for example, if an employee acts inappropriately in front of clients at a work’s party, or where they post something derogatory online about their job or other members of staff.
Misconduct can potentially extend to a limitless range of issues, as such, employers should specify their expectations and requirements for employee conduct and behaviour, which would usually be within the organisation’s disciplinary policy, staff handbook or in your contract of employment.
What is gross misconduct?
Gross misconduct covers the more severe end of the conduct scale and refers to actions and behaviours deemed by the employer to be sufficiently unprofessional, negligent or unethical that it falls short of regular standards in the typical workplace and destroys the relationship between employer and employee.
There is no legal definition of gross misconduct but it is generally accepted as covering a broad range of offences that staff members could commit at work, such as (non-exhaustive):
- Theft, fraud or dishonesty
- Physical violence or bullying
- Malicious damage to property
- Serious misuse of an organisation’s name or property
- Email or internet abuse
- Setup of a competing business
- Misuse of confidential information
- Serious insubordination
- Discrimination or harassment
- Bringing the organisation into serious disrepute
- Offering or accepting bribes
- Serious breach of health & safety regulations
- Breach of confidentiality
- Gross negligence
- Breach of alcohol or drugs policy
In some circumstances, it may be reasonable for an employer to deem a pattern of misconduct sufficiently serious as to constitute gross misconduct.
Employers should clearly document their expectations and standards for what constitutes gross misconduct either in their employment contracts, employee handbook or disciplinary policy. A robust policy will also identify the potential sanctions available to the employer in the event an employee is found to have committed an act of gross misconduct.
What is the difference between misconduct and gross misconduct?
Gross misconduct is something so serious that it fundamentally undermines the implied duty of mutual trust and confidence between the employer and employee, justifying dismissal for a first offence. In contrast, minor misconduct is something that does not necessarily undermine the employment relationship, but which, if repeated, may become sufficiently serious to justify bringing an employee’s contract of employment to an end.
Minor misconduct could include things like a one-off incident of lateness that could be easily dealt with by way of a quiet word, often without the need for any formal disciplinary procedure whatsoever. That said, persistent lateness following a first and final written warning could ultimately lead to a decision to dismiss. At the other end of the spectrum is gross misconduct, where the employer is entitled to treat this is as a fundamental breach of contract, allowing them to summarily dismiss the employee, ie; without notice or pay in lieu.
Every dismissal must be approached on a case-by-case basis taking into account all the circumstances involved, including any mitigating factors. However, common examples of gross misconduct that could support a decision to summarily dismiss an employee include:
- Physical violence or threats of violence at work
- Aggressive, intimidating, indecent or abusive behaviour at work
- Dangerous horseplay in the workplace
- Discrimination or harassment of colleagues, even outside working hours
- Serious insubordination at work
- Serious breaches of health and safety requirements
- Intoxication or possession of drugs and alcohol at work
- Theft, fraud or dishonesty at work
- Misuse of or damage to company property
The organisation may have other examples of gross misconduct set out in the workplace policy, with express prohibitions against certain types of misconduct relating to the sector or the nature of the business. For instance, IT-related incidents, such as divulging a company or client password, will often count as gross misconduct in the financial sector.
What constitutes gross misconduct can also depend upon the context in which the conduct takes place and how serious the effects are of the behaviour in question. In most cases summary dismissal will be justified by a single incident of gross misconduct, although there are instances where the cumulative effect of a series of acts showing a pattern of serious misconduct may also warrant dismissal without notice or pay in lieu of notice.
Dismissal due to gross misconduct
Dismissal due to misconduct at work is not, of itself, unfair. Still, to minimise the risk of a claim for unfair dismissal, the employer must act reasonably and fairly at all times when making a decision to dismiss.
Under the Employment Rights Act 1996, an employee’s conduct, and where this falls short of what is deemed as acceptable in the workplace, is a potentially fair reason for dismissal. Still, even where the employer can clearly establish some misconduct on the part of the employee, the decision to terminate their employment will only be deemed fair if they acted reasonably in all the circumstances in treating the misconduct in question as a sufficient reason to dismiss.
There is no legal definition of ‘reasonableness’, where various factors may be taken into account by an employment tribunal in determining whether or not the employer acted reasonably throughout the disciplinary and dismissal process. These could include whether or not they followed a fair disciplinary procedure. In its overall assessment of reasonableness, the tribunal will also look at whether any dismissal decision fell within a range of reasonable responses available to the employer. This can include any previous decision-making, and whether the decision to dismiss is consistent with decisions made about other employees.
Even in cases where the conduct complained of is so serious that it arguably justifies a decision to summarily dismiss an employee, the employer must still fully investigate the circumstances and provide the employee with the chance to defend any allegations of gross misconduct.
A failure to follow a fair disciplinary and dismissal procedure, and to act reasonably in all the circumstances, may result in a finding of unfair dismissal for which the employer will be ordered to pay damages to the employee. The employer may also be ordered to reinstate the former employee in their old job role, or to re-employ them in a different role within the organisation.
Can an employee be dismissed without notice?
Instant, or summary, dismissal is where an employee’s contract is terminated by dismissal without notice. This may only be lawful where the disciplinary issue is sufficiently serious to warrant ‘sidestepping’ the standard disciplinary process.
The employer must in all cases follow a fair procedure in dismissing an employee, regardless of the nature of the conduct, even where the allegation is of gross misconduct.
The organisation’s disciplinary policy should make clear what would be deemed gross misconduct, what the process is to handle the allegations and the potential sanctions.
The employee may be able to bring a tribunal claim if the employer’s grounds for instant dismissal did not equate to a fundamental breach of the employment contract and they were dismissed unlawfully without notice and without notice pay.
Can I claim for unfair dismissal?
Gross misconduct can be a lawful reason for your employer to dismiss you without notice and without payment in lieu of notice (PILON).
However, your employer has to follow a fair and correct process and come to a reasonable decision in the circumstances, or the dismissal could be deemed unfair, giving you the right to bring a tribunal claim.
You can only bring a claim for unfair dismissal if you have been employed for at least two years before you were unfairly dismissed or any notice was given.
For an unfair dismissal claim, the employment tribunal would not be looking at whether you were actually guilty of the misconduct. Tribunal proceedings will be focused on the conduct of the employer to determine whether its decision was reasonable and fair based on the findings.
The question would be whether your employer genuinely believed, and had reasonable grounds for believing, that you were guilty of the misconduct at the time, and at the time it held that belief, had carried out as much investigation as was reasonable in the circumstances.
You usually only have 3 months less one day from the date of your dismissal to bring your claim and you must also notify ACAS through the early conciliation service prior to starting the claim.
If you were dismissed without notice, you may also consider whether you have a claim for wrongful dismissal if the allegations against you were wrong. Wrongful dismissal applies where your employer has breached the employment contract. Failure to pay notice on the basis of incorrect allegations of gross misconduct could be grounds for wrongful dismissal.
If you think your dismissal was unfair or wrongful, it is best to take legal advice on your specific case to understand the best course of action for your circumstances. In most cases, employers and employees would prefer to avoid going to tribunal, and a negotiated settlement may offer a quicker and more favourable outcome for you.
How should I deal with allegations of misconduct?
While proven accusations of less serious misconduct might result in a formal warning, if you are found to have committed gross misconduct, you could be lawfully dismissed.
Your employer has to follow a fair and transparent process to investigate the matter and come to a fair and reasonable decision on what action to take against you, if any. ACAS provides guidelines which employers are expected to follow throughout disciplinary proceedings.
Your employer should have a written disciplinary policy in place which outlines the process for conducting disciplinary investigations and the sanctions that can be imposed.
If you are facing formal disciplinary action for gross misconduct, you need to ensure you have in writing from your employer details of the allegations or complaints being made against you. Your employer should carry out a full and fair investigation into the allegations. If your employer suspends you during the investigation stage, it should be on the basis of allowing a fair investigation to take place. Suspension should not be used by the employer as a punitive measure.
Your employer should then hold a disciplinary hearing for you to hear the case against you and to be given the opportunity to tell your side. You should be given adequate time to prepare for the hearing, and in advance, your employer should also provide you with the evidence being relied on, such as emails, witness statements and other details of relevant incidents or events.
Taking legal advice in advance of a disciplinary meeting can help you understand your options and how best to approach the hearing. If you are a member of a trade union, discuss the matter with your union representative at the earliest opportunity. You can also be accompanied, for example by a work colleague or trade union representative.
Your next steps will depend on the outcome of the disciplinary hearing, which you should be informed of in writing as soon as possible after the hearing date. Depending on the facts of the case and other considerations such as your previous conduct record, you could be facing a final written warning, demotion or dismissal for gross misconduct. The decision letter should give you the opportunity to appeal.
Note that you don’t always need to have appealed the decision to be able to make a tribunal claim, but if you are successful at tribunal, your award may be reduced as a result of not having followed the full process.
In most cases of misconduct at work, these are one-off incidents where a quiet word and agreeing to improvements to be made may be enough to resolve the issue without the need for disciplinary proceedings. This can often be the easiest solution. However, where the misconduct is too serious to be dealt with informally, or where the matter complained of persists, you may need to take formal disciplinary action.
All employers must have a written disciplinary and dismissal procedure setting out the basis upon which an employee can be fairy dismissed, as well as the circumstances in which other lesser disciplinary sanctions can be imposed. By clearly setting out the types of behaviour that might lead to disciplinary proceedings, including what constitutes gross misconduct, you can demonstrate the fairness of your approach to misconduct matters at work.
As an absolute minimum, any disciplinary procedure must comply with the ACAS Code of Practice. This sets out the basic requirements of fairness and standard of reasonable behaviour applicable in most cases. It should also be easily accessible to all members of staff in either their employment contracts, staff handbook or on the staff intranet site.
A failure to follow the ACAS disciplinary code will not, of itself, make you liable to proceedings, nor does it automatically make a dismissal unfair, although an employment tribunal will take this into account when considering an unfair dismissal claim. A failure to follow the code could also result in any compensation payable by you being increased by up to 25%.
Should you resign before a disciplinary hearing?
In some cases of gross misconduct where there is a risk of dismissal, you might be considering resigning before you are dismissed, not least to avoid having the dismissal on your employment record. But there are related issues to take into account before taking what should be considered a measure of last resort.
You will need to weigh up the chances of being dismissed by assessing the strength of the case against you, and whether a lesser penalty could be possible.
By resigning, you are likely to lose any opportunity to challenge or appeal a dismissal. Your employer may also decide to hold the disciplinary hearing during your notice period. If the decision is to dismiss you, you will not receive payment for your notice.
You should also consider the reputational implications of resigning, as your employer may disclose that you resigned pending disciplinary proceedings after facing allegations of gross misconduct.
If you are finding it impossible to continue to do your job, perhaps due to potentially malicious or unsubstantiated allegations, you may be in a position to resign and claim constructive dismissal.
Your options when facing disciplinary action for gross misconduct will depend on your circumstances. This is why it is best to take legal advice as soon as you are aware you are the subject of disciplinary proceedings.
Negotiating an exit with a s may, for example, be a quicker way for both sides to resolve the issue on more favourable terms. If you decide to see the disciplinary procedure through, but have concerns that the process was not fair, you may be able to bring a tribunal claim.
DavidsonMorris’ employment lawyers can help if you need professional legal support with a gross misconduct issue. Contact us for advice.
Last updated: 3 May 2021