Gross Misconduct

Misconduct vs. Gross Misconduct – What is the Difference?

Gross misconduct covers conduct that is very serious and has grave effects. In contrast, minor misconduct is something that does not necessarily undermine the employment relationship. However, if repeated, it may become serious enough to justify the employer taking action against the perpetrating employee.

Minor misconduct is any form of improper behaviour that negatively impacts an employee’s work, working environment or colleagues, or falls short of the required standards, guides or codes of conduct that the employer recognises. This could include single incidents of lateness that could be dealt with by a quiet warning without formal disciplinary procedures. However, persistent lateness following a first and final written warning could eventually lead to a decision to dismiss.

What’s more, misconduct can happen outside of work hours and reflect poorly on the employer. For example, an employee could misbehave at a work event including clients or make derogatory comments online about their job.

What are Some Types of Gross Misconduct?

Some common examples of gross misconduct that could support a decision to dismiss an employee include:

• Physical violence or threats of such at work
• Aggressive, intimidating, indecent or abusive behaviour at work
• Sexual harassment
• Dangerous horseplay in the workplace
• Discrimination or harassment of colleagues, even outside working hours
• A serious act of insubordination at work
• Serious breaches of health and safety requirements
• Internet or email abuse
• Intoxication or possession of drugs and alcohol at work
• Theft, fraud, or dishonesty at work, including financial irregularities
• Misuse of or damage to company property
• Breach of confidentiality

Yet this list is non-exhaustive and what constitutes gross misconduct will depend upon the context and seriousness of the consequences. Therefore, every dismissal should be dealt with independently, and all the circumstances should be considered, including any mitigating factors. 

Furthermore, your employer would better be able to defend against claims if they’ve set out what constitutes gross misconduct in advance and brought it to your attention. As such, most employers set this out in the contract of employment or workplace policy as good practice. However, if they dismiss you for a reason not listed, this doesn’t mean the dismissal was unfair.

What’s The Difference Between Gross Misconduct and Gross Negligence?

Gross negligence in the workplace occurs when employees fail in their legal duty of care to their colleagues or responsibilities. The act can be intentional or unintentional and will generally destroy the trust and confidence between employee and employer. As such, it can be considered gross misconduct and justify summary dismissal.

Does Your Employer Need to Follow a Particular Type of Process?

The ACAS code of practice outlines the process your employer should follow if disciplinary action is being taken against you. If your employer doesn’t follow the correct process and you lose your job, this could potentially amount to unfair dismissal.

Under the ACAS code, your employer should follow these steps:

1. Properly investigate the matter
2. Inform you of the issues in writing
3. Provide you with an opportunity to respond
4. Conduct a disciplinary hearing or meeting with you
5. Inform you of the decision in writing
6. Provide you with the right to appeal

However, depending on the conduct’s severity, whilst the Tribunal may find in your favour, no compensation may be awarded.

Is An Investigation Always Required?

To avoid any potential unfair dismissal claim, your employer must conduct a ‘reasonable investigation’. This must occur to prove you committed the act and that it was so serious that it’s considered gross misconduct.

How Should an Employer Carry Out the Investigation?

Generally, your employer will appoint an investigator to carry out the investigation. They are usually a colleague but should not be involved in the original issue being investigated. In more complex situations, your employer may decide to appoint an external investigator.

The investigator should reasonably collect and consider all evidence. This includes witness statements, written documentation and any other evidence that will provide them with an overview. They should then compile their findings in a written report.

What Is an Investigation Meeting?

An investigation meeting differs from a disciplinary meeting in that it merely gathers all the facts available. It’s not part of the disciplinary process but offers the opportunity to explain your behaviour and clarify matters of concern. From this, your employer will decide whether disciplinary action is necessary, further evidence is needed or the matter should be dismissed.

How Much Notice Should You Be Given Before The Investigation Meeting?

The ACAS guidelines state that an investigation meeting should be held without unreasonable delay while allowing employees reasonable time to prepare their defence. As there is no legal definition of what is considered ‘reasonable’, each case will differ. Generally, a few days’ notice will suffice. However, there are others in which there is a lot of evidence to consider, and therefore, it could be longer.

Do You Have a Right to Know What the Allegations Are?

If your employer informs you that they will be conducting an investigation, they should explain:

• Why an investigation is taking place
• Who will be carrying it out
• How long it will last
• The likely steps in the process

Although the ACAS code isn’t legally binding, the Tribunal will consider whether an employer has followed it during their deliberations.

What Kind of Evidence Should Your Employer Provide to You?

If you are facing formal disciplinary action for gross misconduct, your employer should set out the details of the allegations made against you. They should also provide all the evidence that they intend to rely upon at the disciplinary hearing. The evidence could include emails, witness statements, meeting minutes from witness interviews, policies, and any other documentary evidence collected.

What is a Disciplinary Hearing?

Once an investigation is concluded, you might be asked to attend a disciplinary meeting. This generally happens when the investigation has shown that the employee in question has a case to answer for. This should be held by someone different from the person who conducted the investigation.

During this meeting, the employer will be presented with all the evidence collected during investigations. This will also be your opportunity to give your evidence to convince the employer that dismissal should not be the outcome. Once all the evidence has been provided, the employer will decide on the outcome of the matter.

How Much Notice Should You Be Given Before a Disciplinary Hearing?

As with an investigation meeting, a disciplinary hearing should also be held without unreasonable delay but with enough time for you to adequately prepare your defence. There’s no legal definition of what’s considered “reasonable”, but generally, you should be given at least a few days and, in some cases, up to a week. 

The amount of notice given should depend on several factors, like the amount of evidence provided. The more evidence there is, the more time you will need to review and prepare your case before the hearing.

Can You Postpone a Disciplinary Hearing?

If you believe the time provided to prepare before your hearing is insufficient, you should ask for a postponement. At such time, you should set out why you require the delay.

Furthermore, if your companion cannot attend the date set by your employer, you can request its postponement. In such circumstances, the disciplinary hearing could be delayed by up to 5 working days.

Can You Request That a Solicitor Attend the Disciplinary Hearing with You?

Legally, an employee has the right to be accompanied to a disciplinary hearing. An employee can bring one of the following:

– a colleague or someone they work with;

– a trade union representative who is certified by their union;

– an official employed by a trade union

Employees can request to bring someone else, like a solicitor or family member, but this is at the employer’s discretion.

What Happens If You Can’t Attend a Disciplinary Hearing?

If you’re consistently unable to attend a disciplinary meeting or unwilling to attend, your employer may need to decide based only on the evidence available and without your defence. This will likely be reasonable where an employee is unreasonably refusing to attend and has unduly delayed the hearing.

Should you be unable to attend due to medical reasons, your employer should consider postponing for as long as reasonably possible until you’re well enough to attend. However, this also must be done within a reasonable time frame. Your employer may also consider alternatives like allowing you to make written submissions or conduct the hearing online.

Can You Record a Disciplinary Hearing?

No legislation expressly prohibits an employee from recording a disciplinary hearing. However, it is advisable not to record covertly and only proceed with the consent of all parties at the hearing.

What If My Employer Could Not Prove ‘Beyond Reasonable Doubt’ That I Am Guilty of The Conduct and Still Dismissed Me for Gross Misconduct?

The employer does not have to prove your guilt ‘beyond reasonable doubt’. They only have to show that they formed a ‘genuine belief’ in your guilt based on the evidence.

How Will an Employment Tribunal Decide If Your Dismissal for Gross Misconduct Was Fair?

When deciding whether your dismissal for gross misconduct was fair, the Employment Tribunal will consider the following factors:

• Whether your employer had a genuine belief in your guilt
• Whether this belief was reasonable
• If the matter was reasonably investigated
• Whether a disciplinary meeting was held where you could provide your defence
• If you were you given adequate notice of the meeting
• If you were you given notice of your right to be accompanied
• Whether you were you provided with supporting documents and/or witness statement before the meeting
• If you had a sufficient opportunity to make your case during the disciplinary meeting
• If the disciplinary meeting was led by someone impartial
• Whether you were given the right to appeal the decision
• If your employer acted consistently for similar previous offences

However, the most important aspect the Employment Tribunal will need to consider is whether your employer genuinely believed and had reasonable grounds for believing that you were guilty of gross misconduct. Additionally, holding that belief, your employer conducted as much investigation as was reasonable.

Once these tests have been satisfied, the Tribunal must consider whether your employer acted within the range of reasonable responses open to the employer by choosing to dismiss you. The Tribunal must also consider whether another action, such as a final warning, would have been more appropriate and consider any mitigating factors, such as your disciplinary record and whether you showed remorse.

What if Another Employee Undertook the Same Act of Gross Misconduct but was not Dismissed?

This in itself is not necessarily enough to bring a claim of unfair dismissal and will depend on the specific circumstances of the employees’ situations. If there are no differences, then the Tribunal will need to consider whether it was reasonable for one employee to be dismissed but not the other and the onus will be on the employer to show why they were not consistent in their approach.

Does Gross Misconduct Have to Be a Serious Act, Or Can It Be a Series of Small Breaches?

It is possible that a series of minor breaches which signify a pattern of conduct can amount to gross misconduct. Therefore, it can be a reasonable response for your employer to dismiss you if you carried out a series of actions in this way.

Is Resigning a Good Idea If You Have Been Accused of Gross Misconduct?

In some cases of gross misconduct where you are at risk of being dismissed, you might be considering resigning before you are dismissed, at least to be able to say you left rather than that you were dismissed. However, there are issues you should consider before considering this last resort measure.

Resigning can often look like an admission of guilt and doesn’t always help you control the terms of your leaving. You are also likely to lose any opportunity you may have to challenge or appeal your dismissal. Additionally, it can be risky to resign without giving notice, and if you do give notice, your employer might decide to continue the disciplinary process after you hand in your resignation.

Your employer may then also hold the disciplinary hearing during your notice period, and if the decision is to dismiss you, you will not receive payment for your remaining notice. Ultimately, you should weigh up the chances of being dismissed by evaluating the strength of the case against you and whether you might receive a lesser penalty.

Do You Have the Right to Appeal Against a Decision That You Are Guilty of Gross Misconduct?

If you are dismissed for gross misconduct, you have a right to appeal this decision. Usually, your dismissal letter will include information on how to submit an appeal. However, even if there isn’t one, you should inform the person who dealt with your dismissal that you would like to appeal at your earliest opportunity.

Nonetheless, the effect of an appeal is usually reinstatement of your employment. If you are not seeking reinstatement, you should clarify this as part of your appeal. Your employer may decide not to proceed with your appeal if it is not reinstatement that you are looking for. For clarity, this will not mean that an Employment Tribunal will consider your dismissal unfair in these circumstances.

If you are reinstated following your appeal, any claim for unfair dismissal will fall away.

Should You Negotiate a Settlement or Bring an Employment Tribunal Claim?

If you believe a dismissal for gross misconduct is inevitable or have already been dismissed, consider whether an agreeable exit can be negotiated. This kind of settlement is appropriate where your employer can be convinced that you have a strong claim against them concerning the disciplinary proceedings.

This strategy is highly tactical and one you will likely want a qualified solicitor assisting you with. If your employer can be persuaded to enter into settlement negotiations, you can expect to negotiate a clean job reference, your notice payment, any outstanding holiday pay, and a compensatory payment. In return, you may be asked to sign a settlement agreement waiving your right to bring any future claim against your employer.

Deciding Whether and When to Bring an Employment Tribunal Claim

Taking your employer to the Tribunal is the final and most costly way you can challenge your dismissal. You should consider that the Tribunal process is long and stressful, and there is no guarantee that you will win your case. With the current backlog experienced in the Employment Tribunals, you could be waiting two years before you receive an outcome of your claim.

You should also bear in mind that you only have three months minus one day from the date of dismissal to bring a claim in the Tribunal, although this time frame can be lengthened by the amount of time spent in ACAS early conciliation.

Claiming with Redmans

We hope this guide has answered your questions about gross misconduct. If you have any further questions or want help claiming unfair dismissal compensation, contact us today. Redmans Solicitors are employment law specialists with years of experience and have helped several clients in similar circumstances.

So, to begin your journey with us now:

• Call us on 020 3397 3603
• Complete our online form to request a callback