GROSS MISCONDUCT | 5 examples every employer should know


GROSS MISCONDUCT | 5 examples every employer should know

Tempted to sack someone on the spot but not sure about the law?

Well, summary dismissal – dismissal without notice – can sometimes be legally acceptable when an employee commits an act of gross misconduct.

It is always best to consult the experts when looking to sack an employee – contact us now.

Gross misconduct is an act which is so serious that it justifies dismissal without notice, or pay in lieu of notice, for a first offence. They must be acts that destroy the relationship of trust and confidence between the employer and employee, making the working relationship impossible to continue.

Employers often erroneously think that “summarily” means you can fire someone on the spot, but in reality, you still need to follow a fair procedure. If you do dismiss them instantly, it is likely that you will face a claim of unfair dismissal.

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What amounts to gross misconduct will vary from company to company, depending on the sector and the nature of the business. In general, most employers would agree that, depending on the circumstances’ severity, the following five examples could amount to gross misconduct.

1  Theft, fraud and dishonesty

This covers:

  • Stealing office equipment, company stock, merchandise or cash
  • Stealing personal belongings from colleagues
  • Unlawfully obtaining or disclosing commercial data
  • Making fraudulent expenses or overtime claims
  • Fraudulently using personal data for personal use
  • Falsifying accounts, time-recording forms or self-certification forms

This can incur huge costs for employers as well as damaging their relationship with clients or service users.

2  Offensive behaviour

This could involve:

  • Harassment
  • Bullying
  • Fighting
  • Aggressive or intimidating behaviour
  • Threats of violence
  • Dangerous horseplay

This can occur between colleagues, between a worker and a customer or anyone else that comes to the work site. Either way, offensive behaviour can have a big impact on employees’ health, morale, performance and confidence.

3  Damage to property

This can include deliberate or wilful damage to property or gross negligence that can result in substantial loss or damage to property.

4  Serious incapacity or misconduct caused by an excess of alcohol or drugs at work

This covers:

  • Serious incapability due to drinking or taking drugs whilst on duty
  • Possession of drugs or taking drugs on the employer’s premises
  • Buying or selling drugs on the employer’s premises

The dangers are clear – being under the influence of drugs or alcohol can cause absences, lower productivity and pave the way for accidents which put both themselves and their colleagues at risk.

5  Serious breach of health and safety rules

Some typical examples could include:

  • Removing or not using machinery guards
  • Persistently refusing to wear Personal Protective Equipment (e.g. a hard hat on a building site)
  • Dangerous driving on the work site

When employees commit serious breaches of health and safety rules, this can result in reputational damage and significant liability for employers.

Fairness

For the dismissal to be considered fair:

  • The employer has to genuinely believe that the employee had committed the misconduct
  • The employer must show that they had reasonable grounds for believing this
  • When reaching that conclusion, the employer must demonstrate they have carried out a reasonable investigation
  • The employer must show the dismissal falls within what is referred to as the “band of reasonable responses”.

An Employment Tribunal will consider all the circumstances of the case, including the employer’s size and resources. The Tribunal will look to see whether the employer’s response to the misconduct fell within the “band of reasonable responses”. If in the Tribunal’s view, no reasonable employer in the circumstances would have dismissed the employee, the dismissal will be considered unfair. Employees with at least two years of service with you can submit a claim to an Employment Tribunal for unfair dismissal.

Remember that to merit summary dismissal, the act must go to the core of the employment relationship and break down the trust and confidence, preventing the relationship from continuing.


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