Gross Misconduct: an employer's action plan

An employee’s dismissal can be an extremely stressful time for employers and employees. Get it wrong and you could find yourself staring down the barrel of a wrongful dismissal case. Get it right and a loss of workplace morale (as well as a lawsuit) is avoided.

As with many legal matters, it is always best to stick to the letter of the law. However, in the real world, these letters don’t always apply equally. What constitutes misconduct, serious misconduct, and gross misconduct can vary widely in different contexts. Is repeated lateness serious enough to dismiss an employee without pay-in-lieu of notice?

Should the mysterious disappearance of the company gerbil result in Simon, the infamous gerbil-killer, being suspended with full pay until an investigation has been conducted? This example is less far-fetched than you think. Either way, it would help if you knew exactly what is considered gross misconduct and what to do if and when it happens in your company.

What is gross misconduct?

An employee’s actions constitute gross misconduct if they destroy the relationship with the employer. Such a breakdown of trust and respect is often hard to achieve, especially if the working relationship beforehand was strong. As such, only very severe actions will achieve this. However, if the employee has a poor behavioural track record, then a slightly less severe misdemeanour might warrant this title.

Examples of gross misconduct range from the obvious to the slightly more obscure. Let’s work our way through some categories.

Types of gross misconduct

Abusive, offensive, or aggressive behaviour

It doesn’t take a relationship councilor to tell you that threatening, bullying, harassing, or fighting with coworkers isn’t a good way to maintain healthy working relationships. But here are some simple ways of maintaining these:

Such actions will usually result in a case of gross misconduct. I think it’s fair to say that a firm slap to the face, bottom, or anywhere else on the body would break down employee-employer relations. No employee should ever feel physically or emotionally vulnerable in the workplace. So if an employee has shown that they cannot be trusted with a basic responsibility that every human bears, then serious questions must be asked as to their future at the company. It may be that a gross misconduct case is the only reasonable course of action.

However, even in seemingly clear-cut situations such as this, a proper investigation should always be conducted, and adequate time given to the employee to explain themselves and their actions. But we’ll get to this in more depth. Furthermore, the above list of abusive actions is far from exhaustive, and your employee contracts should stress this. An offence not being listed in the contract isn’t a valid line of defence, and your employees should know this.

Deceitful or dishonest actions

Few things will lose the trust of an employer quicker than stealing. Along with this, dishonest actions such as fraud or illegally obtaining and leaking data normally constitute gross misconduct. Specific cases relating to company privacy should be outlined in employees’ contracts. Take downloading certain software from the internet, or even using personal software on your work computer. Depending on the type of business, using alternative software or software that are considered risky (for viruses and malware) can result in immediate dismissal.

Companies possessing such specific rules regarding computing should state so in their employee contracts. This both protects yourself should the case be disputed and may prevent the misconduct occurring in the first place. Such actions that betray the trust that is essential for a positive working relationship often constitute gross misconduct dismissal.

Endangering oneself or other employees

Gone are the days of the health-and-safety-gone-mad-zealots. There have to been too many instances that prove the value of rigorous health and safety measures. At the very least, it provides our country with jobs and engages employees in the practice of looking after one another. Bearing this in mind, if an employee consistently shows blatant disregard for protecting themselves and their coworkers, a case of gross misconduct may be in order.

Often, less severe breaches of health and safety result in warnings or misconduct discipline such as suspension. However, for the most serious of breaches, and repeated offences, often a full investigation will lead to dismissal due to gross misconduct.

Intoxication

Sadly, many gross misconduct cases are due to workers who struggle with substance abuse. Whether this is a repeated struggle or a one-off offence, the well being of your other staff should be your primary concern. Take Louis, who came into work after a night out but clearly hadn’t had enough time to rest before his shift began. He could barely walk into the kitchen let alone safely operate the equipment. Such brazen disregard for his or the safety of his fellow chefs requires instant action.

However, dealing with those who are under the influence of alcohol can often be a tricky affair. It may take involving those from HR to help de-escalate the situation. Thankfully, Louis came to the manager’s office for a ‘discussion’ wilfully. He was told that he’d be given fully paid suspension and the opportunity to defend himself during the investigation. When given the chance, he admitted to being too drunk for work and, unfortunately, lost his job.





Furthermore, many misconduct cases are filed due to the possession or buying of drugs on company premises. Exactly where the company stands on these issues should always be stated. In many cases, substance abuse is related to mental health struggles the employee may be enduring, and many companies have structures in place to support such matters. Cases like these occur frequently in the UK, so knowing how do deal with gross misconduct is crucial for any business.

Employer’s action plan following an employee’s gross misconduct

So, the worst has happened. How will you wait until the next ‘Line of Duty’ series is out now that you’ve watched them all? Oh wait, that’s my problem. Gross misconduct, on a more serious note, should always be dealt with in a meticulous, professional fashion. Your company should have clearly laid out the steps you or your managers should take in the case of gross misconduct. However, it’s always easier said than done, so here is a broad walk-through.

Deal with the immediate situation

Cases of employee misconduct obviously vary in degree of immediate threat. An aggressive, drunk employee is a more immediate threat to the safety of others than the employee who has used prohibited software on their work computer. Risk assessment should kick in and backup sought if necessary. In Louis’ case, the manager felt uncomfortable handling the situation alone, so spoke to HR first who came and allowed a unified approach to dealing with him.

Once the situation has been dealt with, the legal stuff begins.

Beginning the formalities

The following applies to those under formal contract. There are different laws for so-called ‘casual workers’. It’s important to get clued up on their rights as well.

A manager must firstly inform the offending employee in writing that they are under investigation for gross misconduct. Contrary to the movies, an on-the-spot firing is illegal for employees who have been under contract for over two years. And, in some cases where the employee has been with the company for less than two years, such as those with temporary positions, an instant dismissal can still result in a breach of contract and a wrongful dismissal case. Therefore, on informing the employee, usually, you will tell them that a full investigation has begun, and that they will be given the opportunity to defend themselves at a disciplinary hearing. Additionally, so that the investigation can be conducted impartially, the employee should often be suspended with full pay.

Conducting the investigation

The investigation should be thorough and unbiased. For gross misconduct to be cited, the employer must genuinely believe that such actions have been performed. Furthermore, they should be able to show that this is the case.

If the case goes to a tribunal, an employer cannot simply cite their own perceptions as evidence. Witnesses should be spoken to and accurately recorded. Past instances of misconduct from the employee in question may also be relevant. However, if these were not recorded at the time, they are inadmissible.  A key piece of advice, therefore, is to always record instances where misconduct occurs, even if it isn’t disciplined at the time.

The hearing

Once the relevant records have been gathered, it is time to meet with the employee to discuss the event and possible courses of action. Written records of the day’s actions were presented to Louis, which should always be done in such hearings, after which he admitted to being under the influence of alcohol.

Unfortunately for him, company policy dictated that his contract be terminated even though he cooperated with the investigation. Therefore, after the hearing was adjourned, which is again recommended in order to make the best possible decision, he was subsequently dismissed without pay-in-lieu of notice. This is in keeping with the norm when such cases result in dismissal.

Although after being told that he could appeal the dismissal, Louis decided not to, and has since made a fresh start in the catering industry. He was replaced as quickly as possible because the case was handled with professionalism and integrity. Employees should always be given the opportunity to appeal such decisions.

As with UK requirements of fairness during dismissals, it is an employee’s right to appeal. Therefore, everything that is discussed and conducted must be recorded and available to call on should an appeal be launched. Ultimately, all efforts should be made to ensure maximum transparency during the procedure. Measures like recording all instances of misconduct and having thorough, well-written contracts ensure that the unfortunate process of dismissal due to gross misconduct runs as efficiently as possible.

As we can see, gross misconduct is a serious issue that requires meticulous handling and professional and fair judgement. The well-being of other staff members and the business should always be considered. However, the ultimate consideration is the law. You cannot dismiss an employee without following the above steps when an act of gross misconduct is committed. So there you have it. Phew. The difficult procedure and examples of gross misconduct explained. Good luck!