When an employee commits an act of gross misconduct, employers will often not know what their next step should be.

Can you do an Alan Sugar (i.e. point your finger towards the employee and ask them to leave immediately) if someone commits gross misconduct? Or do you need to have a follow a specific procedure?

In this article, our Employment Law Advisers answer some FAQs and clear up any doubts you may have.

What is gross misconduct?

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.

What could amount to gross misconduct?

Examples of acts of gross misconduct include theft; fraud; deliberate acts of discrimination or harassment; refusal to carry out reasonable instructions, violent or intimidating behaviour, wilful damage to property or breach of health and safety rules.

In your Employee Handbook, you should set out examples of acts which will be considered gross misconduct. You should include any conduct specific to the sector or workplace. Remember that your Ellis Whittam Employment Law Adviser can help you draft an appropriate list of examples.

Does this mean you can just dismiss an employee on the spot?

Even in cases of gross misconduct, you still need to follow a fair procedure. If you do dismiss the employee instantly, it is likely that you will face a claim of unfair dismissal.

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What constitutes a fair procedure?

When dealing with gross misconduct, you need to follow your disciplinary procedure.  This should be included in your organisation’s Employee Handbook.

A fair disciplinary procedure involves investigating the matter, informing the employee of the issue, holding a disciplinary hearing, allowing them to be accompanied, letting them respond to the allegations and giving them the chance to appeal.

In cases of suspected gross misconduct, it may be necessary to suspend the employee on full pay while the investigation is taking place. This may be to carry out an unhindered investigation. If you do suspend the employee, it should be made clear to the employee that this is not a disciplinary sanction and the suspension should be as short as possible and be kept under review.

The decision to suspend should never be taken without proper consideration. If you do suspend when it is not reasonable to do so or for longer than necessary, it could be considered a breach of the implied term of mutual trust and confidence and lead to the risk of constructive dismissal.

Special care must be taken when dealing with employees who are professionals. For example, teachers, as a result of the impact of the suspension on them and their reputation. Contact your Employment Law Adviser to explore this further.

When can an employee submit a claim for unfair dismissal?

Employees with at least two years of continuous service can submit a claim to an Employment Tribunal for unfair dismissal. In cases of automatic unfair dismissal, this two-year qualifying period is not required.

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