Gross misconduct is a very serious misconduct conducted by an employee. It is usually intentional but whether done intentionally or not, it allows the employer to dismiss an employee summarily without notice or a payment in lieu of notice.
‘Summarily’ doesn’t mean that the employee should be ordered to leave the office on the spot. Those days are behind us. It is now usual to hold a disciplinary investigation even in obvious cases, at least for employees with over two years’ service, who are able to bring employment tribunal claims for unfair dismissal.
If it turns out that the employer had a good reason for the gross misconduct dismissal, there could still be a successful unfair dismissal claim if proper procedures have not been followed. But subject to that, the employer can safely dismiss the employee without giving the statutory or contractual notice as it would do if the employee were terminated in normal circumstances.
What counts as gross misconduct?
There is no legal definition for it as such; but the following are examples of what caselaw has said is gross misconduct an unfair dismissal claims:
- Intoxication or being under the influence
- Any dishonesty (we advise that even a tiny act of dishonest warrants dismissal)
- Very serious breaches of health and safety rules
- Deliberate discrimination (such as harassment, not one of the accidental forms, such as indirect discrimination)
- Sex on the boardroom table
However, other acts could be added into this list, depending upon the nature of the business:
- Using pirated software in creative industries
- Leaking confidential data, even accidentally if it is very private
- Offering or accepting bribes
A client of ours was dismissed for logging onto a computer with someone else’s credentials just to do his work after his employer withdrew access during a disciplinary process. Another client was disciplined for sexual misconduct in his private life several years before he started his job, which involved working with vulnerable people. These are ‘edge cases’, where an employee has a good chance of saying that this is not gross misconduct.
Gross misconduct can attract a dismissal for a one-off offence. The distinction between this and less serious misconduct is that the latter can only attract a dismissal for repeated offences (like coming late to the office, personal appearance and poor timekeeping).
Employers often dismiss for gross misconduct when it should have been called ordinary misconduct and a warning given instead. This is one fruitful avenue for a successful unfair dismissal claim.
It is good practice for an employer to clarify what is gross misconduct in its view; together with the consequences to the employees in the employment contract or the handbook.
However, just because an employer considers a particular offence to be gross misconduct, this doesn’t necessary make it so. For example, if an employee should breach the dress code as a one-off incident and this is considered to be gross misconduct by the employer, this does not mean that the employer could dismiss the employee. The employment tribunals step in and ensure that the misconduct is seen as gross misconduct from an objective person’s eyes.
What if the gross misconduct was an accident?
We have said above that gross misconduct must be deliberate. Very rarely, you see cases where an employer gets away with dismissing for what is really serious negligence or even a mere accident – for example, where it causes serious damage or injury or the risk of damage or injury. An employee client of ours was dismissed for leaving a tap running over a bank holiday weekend, which flooded a warehouse. Our advice was that this was a simple error with a serious consequence that was very hard to say an employee should lose their job over. In essence, it could have happened to anyone.
At an employment tribunal, such a case could go either way but strictly speaking, the only examples from caselaw where an employee was dismissed fairly despite causing no injury to anyone was the case of an airline pilot who made a rough landing (with the CEO on board!) through inattention. The Employment Appeals Tribunal said that where serious injury or death can result, a one-off act of misconduct might count as gross misconduct and warrant dismissal.
But employers sometimes fall into the trap of thinking that everything with a health and safety element is a risk to health and safety and therefore dismissal-worthy. A client of ours was sacked for standing on a chair instead of a stepladder. The case settled, but we felt he would have won, on the basis that the employer fell into the trap of thinking that just because a health and safety breach could lead to injury, it should also lead to dismissal.
Employers also fall into the mistake of automatically dismissing just because it is gross misconduct. If they do this then they should not put this reasoning down on paper, because it is a knee-jerk reaction and could lead to a successful tribunal claim from the employee.
What is dishonesty?
The word doesn’t have a technical meaning, as far as we have been able to find, in UK employment law. If you have ever walked out of a shop suspecting, strongly suspecting or even knowing for sure that you were undercharged, this may be something you have considered.
In criminal law it has a very precise meaning, which is whether an ordinary person would regard as dishonest, and if so whether the individual thought it was. This essentially means that the benefit of the doubt is given to the individual.
In an employment context, the analogy may be an employee who picks up 20p thinking that the amount is too small to bother with. Or a retail staff member who is allowed to use his discount card for his immediate family, lets someone else use it. A spouse, perhaps, or a non-co-habiting spouse. Or a child in college or a neighbour or friend. Or to do some DIY for one of these. He may think that he is acting within the spirit of the guidelines or that it is a grey area.
In an employment law context, the judge will again decide what the ordinary person would regard as reasonable but it seems that there is no benefit of the doubt given to the employee. We often find that in unfair dismissal cases, the benefit of the doubt goes to the employer. This may be one of those areas. But while it is unclear, we often argue for employees that their misconduct was not dishonest.
Another area where employers sometimes slip up is by finding against the employee on something in a grievance and saying that this means that the employee was dishonest to say it. That doesn’t follow, and should be challenged.
On the other hand, employees who are accused of fiddling the expenses sometimes think “it was only a small amount” or “everyone else does it” or “I was only rounding up”. This does not mean it was not dishonest. Our stance for employers is that any level of dishonesty, no matter how small, is worthy of dismissal since it casts doubt on the trustworthiness of the employee in other situations. A dismissal for even tiny dishonesty is going to be secure, especially where the employee goes to client’s homes or works without supervision or has access to property or money.
Is all insubordination gross misconduct?
Probably not. Refusal to obey a lawful instruction may constitute gross misconduct. There is scope for technical arguments about what is lawful and what is outside the scope of an employment relationship. Also, whether or not the dismissal is fair will depend on whether the instruction was reasonable.
Employees who feel they are being set up to fail by unreasonable management instructions may say they simply cannot do it and it is very likely that this kind of insubordination would be looked at favourably by a tribunal judge.
There is a case that is well-known to employment lawyers where snacking was gross misconduct. An employee worked in an open plan office near a colleague with a severe nut allergy. The employer told employees in meetings and on posters not to eat nuts at their desks, which he ignored. A tribunal held that the dismissal for eating a bag of nuts was fair.
What if I’m guilty but it’s my first gross misconduct offence?
Your long service and/or clean record should count in your favour. Also, if you are “banged to rights”, it is sensible to admit the misconduct early on and get credit for being contrite. In one case, an employee dismissed for fighting won his case (and the appeal) because it was a one-off in a long career with the same employer – even though fighting was cited as an example of what was gross misconduct in the disciplinary policy. Also, employees have sometimes succeeded in avoiding dismissal for what is gross misconduct, eg swearing at a manager, where they were driven to it by stress at work.
However these are cases where the overarching rule applies; a dismissal must be fair overall, even if it is for misconduct. The take-away point from this article is that an employer should not expect to automatically win an unfair dismissal case just because it dismissed for what is gross misconduct.
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