• HR guide

A complete guide to gross misconduct

Aude Creveau

Every year, many employees will be sacked by their employer for a wide range of reasons: one of the most common is gross misconduct. Yet what is gross misconduct? You need to be sure, as unfair dismissal can result in harsh penalties.

If you're seeking dismissal for gross misconduct, understanding the ins and outs of the law are essential. In this guide, we're going to take a look at what constitutes gross misconduct, so you can be sure that you stay on the right side of the law.

We'll show you how employment law looks at your side and the employee's side and what happens if they take their case to tribunal.

What is gross misconduct?

If gross misconduct sounds like a nebulous phrase, it's because it covers a wide range of different issues an employer can have with their employee. Some examples of gross misconduct include:

  • Theft or physical violence against you or other employees
  • Bullying
  • Fraudulent activities
  • Damage to property
  • Misusing your business' name or property
  • Ignoring health and safety rules
  • Using drugs or alcohol at work
  • Discrimination
  • Accessing inappropriate websites at work

You can define what amounts to gross misconduct in your staff handbook. The list of possible infractions that could be labelled gross misconduct or gross negligence is extremely long.

Rules on dismissing an employee 

There is a range of valid reasons that an employer can dismiss an employee. Section 94 of the Employment Rights Act 1996 established that an employee has the right to be protected from unfair dismissal. 

If an employer wants to dismiss an employee, they need to establish that it is for a valid reason. These include:

  • Gross misconduct
  • Poor performance and a lack of skills
  • The business has to close, rendering the employee redundant
  • An employee can no longer fulfil their role, for instance, if they are a driver and lose their driving license
  • Reorganization, an expired contract, or other substantial change in the employee's relationship with you

If you don't follow these regulations, you could face a tribunal and also destroy the relationship between you and your other employees. Therefore, you must follow the correct procedure when you're citing gross misconduct in a case of dismissal.

Dismissing an employee for gross misconduct or negligence

If you want to start the procedure to dismiss an employee for gross negligence, this is the procedure that we recommend you follow. 

1. Suspend the employee if necessary

If the employee poses a threat to you, your organization or your other employees, you can consider suspending the employee temporarily. This ensures that they can not do any further damage or carry out any threats. 

If the misconduct does not pose a threat, it should not be necessary to suspend the employee.

2. Collect evidence of misconduct

Before you proceed any further, you need to gather any evidence that you have of the employee's gross misconduct. While evidence is not strictly necessary and you can dismiss an employee for misconduct if you have a reasonable belief, it will save you a lot of hassle if it goes to tribunal.

Evidence can include emails, recordings, video footage, attendance issues, unauthorized absences, etc.

3. Hold a disciplinary meeting

The next step is to hold a disciplinary meeting, recorded in writing. At this meeting, you must make your case to the employee, telling them why they are at the meeting.

This is a crucial part of the disciplinary process and cannot be ignored.

During the meeting, take notes and record what they say. You should also show them the evidence that you have collected. Follow the ACAS code of practice for disciplinary procedures.

4. Next Steps

After the disciplinary hearing, you need to inform your employee of the outcome in writing. These should include:

  • Nature of their misconduct
  • If you've given them time to improve, how long this period is
  • Any penalties
  • What future consequences will be
  • How they should make an appeal and when
  • Your reasons for taking this action

Dismissing an employee and facing a tribunal

You can decide to dismiss or suspend the employee after the disciplinary hearing. You can also give an employee a final warning if you believe that they will improve.

If you intend to issue the employee a summary dismissal, you need to make sure:

  • The decision would be judged as reasonable
  • It was a fair decision
  • Their gross misconduct warranted immediate dismissal

If an employee files for unfair dismissal, the case will go to tribunal. They will need to meet some criteria for this including demonstrating a length of service of two years or more. If the tribunal goes ahead, you will receive a letter giving you two weeks' notice of the hearing.

The tribunal will want to see you demonstrate that the dismissal was fair and deserved. Before the hearing, there will be a process of legal discovery where you and the claimant can request documents from each other to support your case such as payslips or a contract of employment. Neither party must withhold evidence.

You and the person making the tribunal claim will also need to arrange for witnesses to speak at the hearing. 

At the hearing, you can speak or have a lawyer do it for you. You'll need to show that the employee's behaviour counts as gross misconduct and that you fairly dismissed the employee. To do this, you will need to show the evidence that you collected earlier and evidence that you followed procedures.


How an HR software can help you

If you're hoping to create a case for gross misconduct, our HR software can help you. It can record absences, demonstrate any attendance issues and help HR communicate more effectively with management.

For more information about our product's pricing, please click here. If you have any further questions about our HR software, please get in touch with us by emailing hello@kiwihr.com. We would be happy to help you learn more.

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