Employer beware | 5 gross misconduct myths that could land you in legal trouble
There are a number of commonly-held myths in the realm of employment law. Some give employers a false sense of security, while others make employers reluctant to take action out of fear of repercussions.
These misconceptions can land you in trouble without you even realising it. For example, employers often assume that “last in, first out” is reasonable way to select employees for redundancy – unaware that this may give rise to discrimination claims as it is likely to disproportionately affect younger employees.
Conversely, some myths allow situations to drag on unnecessarily, either due to legal concerns or simply because employers feel their hands are tied. This cautiousness is understandable, especially with Employment Tribunal fees now abolished, meaning there are now no barriers to disgruntled employees making a claim.
Gross misconduct myths
At one time or another, employers are likely to come up against a situation whereby an employee’s actions or behaviour gives you no choice but to seek to terminate their employment. When this happens, understanding the legal position is key to avoiding claims for unfair dismissal, so what’s fact and what’s fallacy? Let’s bust five of the most common gross misconduct myths that can lead employers astray.
Myth 1: You can only dismiss an employee if they majorly overstep the mark. You cannot fairly dismiss an employee for a series of smaller acts of misconduct.
Gross misconduct comes in many forms, and contrary to popular belief, the term isn’t reserved for one-off, serious acts. Fundamentally, gross misconduct is an act(s) that destroys the relationship of mutual trust and confidence between employer to an irreparable extent, and it’s not only serious offences such as fraud, dishonesty and violence that can have this effect. Indeed, case law has confirmed that a series of more minor misdemeanours, such as repeated failures to follow rules and procedures, may also amount to gross misconduct (although, admittedly, cases like this are the exception rather than the norm).
With definitions of gross misconduct commonly referring to “serious” acts (even the Acas Code of Practice defines gross misconduct as acts that “have such serious consequences that they may call for dismissal without notice for a first offence”), it’s hardly surprising that this is one of the most widely believed gross misconduct myths.
Myth 2: In cases of gross misconduct, you can dismiss an employee on the spot with no repercussions.
While true in some cases, this feeling of invincibility can lead employers down the wrong path. Even if the employee’s conduct is serious enough to warrant immediate dismissal, if they have over two years’ service, failing to follow a reasonable procedure may leave the door open to unfair dismissal claims.
It’s always safest to carry out an investigation to ascertain all the facts and give the employee an opportunity to respond. You might discover that the misconduct wasn’t as serious as first thought and that a lesser sanction is more appropriate, or more information may come to light that provides a reasonable explanation for the employee’s actions. Of course, it might be that gross misconduct is confirmed, but following a fair process will greatly reduce the potential for legal risk.
Myth 3: Gross misconduct is whatever employers define it as in their policies.
Although it’s good practice to include examples of gross misconduct within your disciplinary policy, simply stating that an action will be deemed gross misconduct doesn’t mean that it is in any objective sense. Of course, there is a degree of variation in what amounts to gross misconduct (oftentimes this will depend on the sector and nature of the business), but this doesn’t give employers free reign to set their own criteria and dismiss employees as they see fit.
A Tribunal would still assess the decision to dismiss against general standards of fairness and how the misconduct is labelled by the employer is just one relevant factor they will consider.
Myth 4: If an employee has committed an act of gross misconduct, you are obligated to dismiss them.
Not true. Dismissal is one of the options available to you in cases of gross misconduct, but it’s not a foregone conclusion. Employees’ transgressions aren’t always black and white, and it’s important to take into account the nature of your business and the circumstances surrounding the misconduct before deciding what action is most appropriate. Depending on the nature of the offence, you may wish to consider alternatives, such as demotion or a final written warning. However, keep in mind that imposing different sanctions for the same offence may leave you exposed to unfair dismissal claims.
Myth 5: If you dismiss an employee for gross misconduct, you don’t have to pay them.
Not true. The employee will always be entitled to be paid up to and including the date of their dismissal. In addition, they are entitled to be paid for any accrued untaken statutory holidays they have up to that date. However, if you give employees more holidays than the statutory minimum, the individual’s contract may specify that any contractual holiday over and above that will be forfeited if he or she is summarily dismissed. For guidance on inserting such clauses into your contracts, speak to one of our Employment Law specialists.
Step-by-step guidance you can trust
Facing a difficult employee relations issue? Not sure how to approach the situation safely? At Ellis Whittam, we help thousands of employers across the UK eliminate guesswork and dramatically reduce legal risk through high-quality, practical Employment Law support.
From day-to-day queries regarding lateness and sickness absence to more difficult issues of misconduct and dismissal, your dedicated, legally-qualified adviser will help you to weigh up your options, identify the correct course of action, and achieve your preferred outcome quickly. We can also offer added protection for your business in the form of robust contracts, handbooks and policies and independent Legal Expenses Insurance to cover your costs in the event of an Employment Tribunal claim.