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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’s always best to consult the experts when looking to sack an employee – contact us now.
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Introduction
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’s likely that you will face a claim of unfair dismissal.
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 severity of the situation, the following five examples could amount to gross misconduct. However, it’s always a good idea to seek specialist Employment Law and HR support.
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1. Theft, fraud and dishonesty
This covers:
- Harassment;
- Bullying;
- Fighting;
- Aggressive or intimidating behaviour;
- Threats of violence; or
- Dangerous horseplay
This can incur huge costs for employers as well as damage their relationship with clients or service users.
2. Offensive behaviour
This could involve:
- Harassment;
- Bullying;
- Fighting;
- Aggressive or intimidating behaviour;
- Threats of violence; or
- Dangerous horseplay
This can occur between colleagues, or between a worker and a customer, or anyone else that comes to the work site.
3. 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); and
- Dangerous driving on the work site
When employees commit serious breaches of health and safety rules, this can result in reputational damage.
There is also significant liability for employers.
The dangers are clear – employees 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.
4. 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.
5. 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; and
- Buying or selling drugs on the employer’s premises.
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.
