What constitutes gross misconduct in the workplace is a common question and it refers to serious behaviour or conduct by an employee that falls below the expected standards and damages the contractual relationship between the employer and the employee.
In instances of gross misconduct, an employer may be justified in dismissing the employee without notice, known as summary dismissal, following a fair disciplinary process. As such, it is important for employers and employees to understand the difference between gross misconduct and ‘ordinary’ misconduct, and the potential disciplinary action that could result.
What constitutes gross misconduct in the workplace?
Gross misconduct can result from either a deliberate act or through the gross negligence of the employee. There may be variation in how employers define gross misconduct within their organisation, but as a general guide, the following are common examples of gross misconduct in the workplace:
Violent and offensive behaviour
Acts of violence and offensive behaviour such as aggressive or intimidating conduct, physical bullying and harassment or threats of violence are generally considered gross misconduct.
Theft and fraud
Theft and fraud, as fundamental breaches of trust and of the working relationship between the employer and the employee, are usually treated as gross misconduct. Examples could include stealing company stock or money or falsifying expense claims.
The employee may also face criminal sanctions as a result of any theft and fraudulent activity.
Illegal drugs or alcohol
Incapacity at work due to the consumption of alcohol or illegal drugs, buying or selling drugs while at work or possession of drugs in the workplace are typically deemed gross misconduct.
Damage to company property
Gross misconduct can include deliberate damage to property or damage caused through employee negligence.
A serious lack of care either towards an employee’s duties or to other people, even where not deliberate or intentional, could be deemed gross misconduct by gross negligence. Generally, the degree of damage to the working relationship and any loss of trust and confidence resulting from the act of gross negligence will be the measure of whether gross misconduct applies.
Refusal to follow instruction to such a serious degree that it breaks the trust between the employer and employee could be considered gross misconduct.
Breaches of health & safety law
Employees are under a duty to cooperate with their employer on health & safety matters and to take reasonable care of the health & safety of themselves and of others who may be affected by their actions or omissions. Breaching health & safety rules may be deemed gross misconduct where it places the employee and others at risk of harm or injury by, for example, consistently refusing to follow company safety processes when operating machinery.
An organisation should state what it considers to constitute gross misconduct within its disciplinary rules and should also be clear on acceptable standards of behaviours and conduct within the workplace and the potential consequences where gross misconduct is established. This information should be made available to all employees, for example in the employee handbook or within a company disciplinary policy.
Employers are advised to regularly review their disciplinary policies and employee training to account for new and emerging types of gross misconduct such as cyberbullying and software piracy.
Dealing with gross misconduct
Beyond the discussion of what constitutes gross misconduct in the workplace is the issue of how to deal with the gross misconduct.
When handling a gross misconduct issue, the employer should follow a fair and lawful disciplinary procedure, to avoid giving cause for the employee to complain or bring a claim, and to minimise the impact on resources and employee morale.
In the absence of an internal disciplinary procedure, employers should follow the ACAS guidance on discipline in the workplace. Should the employee brings a claim for unfair dismissal, the tribunal will consider the disciplinary procedure followed against the ACAS guidelines and can uplift compensation by up to 25% where the employer is deemed to have failed to have met the requirements under the ACAS code.
It is not advisable to dismiss an employee instantly following an act of gross misconduct. Even in the most perceivably clear-cut of circumstances, a fair and lawful disciplinary procedure must be followed to prevent allegations of unfair dismissal.
For a gross misconduct dismissal to be considered fair, the employer must show they conducted a full and fair investigation into the gross misconduct. They have to show the employee has committed the gross misconduct and provide evidence they had reasonable grounds for believing this. The dismissal must also be considered a ‘reasonable response’ to the gross misconduct.
Before any disciplinary action is taken against an employee, employers are advised to first establish the facts. It is also advisable to cross-reference records of how the organisation has handled previous similar cases of gross misconduct to ensure consistency and fair treatment.
An investigation should be carried out into the allegations to establish what happened and to gather evidence. If the allegations are substantiated and disciplinary action is likely, the employer should write to the employee to invite them to a disciplinary hearing. In the letter, the employer should state the specific nature of the allegations of gross misconduct against them and the potential sanctions that could result. The employer should also provide the employee with all of the evidence that has been gathered.
During the hearing, you should discuss the allegations and the evidence, and allow the employee the opportunity to state their case. The employee has the right to be accompanied to the hearing.
Following the hearing, the employer should make a decision and communicate this to the employee in writing as soon as possible.
If disciplinary action is to be taken, the decision letter should also outline the process for the employee to appeal. Denying the right to appeal may be deemed unfair and provide grounds for a tribunal claim. For an appeal to be considered fair, it should be handled by an individual who was not involved in the initial investigation or disciplinary process.
Employees must have completed at least two years of service to be eligible to claim for unfair dismissal. The Employment Tribunal will consider in detail all the circumstances of the case, including the investigations carried out, the process followed by the employer, the information provided by the employer to the employee about the disciplinary procedure and potential sanctions.
The tribunal will also examine whether the employer’s response to the misconduct was reasonable. If the tribunal finds that no reasonable employer would dismiss the employee in these circumstances the dismissal will be deemed unfair.
There is also a risk of constructive dismissal claims where the employee resigns during a gross misconduct disciplinary procedure. The employee, again, must have a minimum of 2 years’ employment to be able to claim constructive dismissal.