Is gross misconduct always the end of the line?

It can be easy to think that instant dismissal in gross misconduct cases means you can instantly turf a troublesome employee out on their ear. But, in practice, employment law is rarely so straightforward

Is gross misconduct always the end of the line?

In disciplinary terms, gross misconduct is the equivalent of an unforgivable sin. Whilst the focus of a standard disciplinary process is to deal with undesirable behaviour and reconcile the two parties involved, if an employee is found guilty of gross misconduct it tends to be something hard to row back from. However, this doesn’t mean employers should assume they can simply terminate an employee suspected of gross misconduct without following a clearly defined process.

First of all, it’s worth delineating what does and doesn’t come under the banner of gross misconduct. “It’s where the behaviour is such that it’s a fundamental breach of the employment relationship,” explains Michael Ball, partner at Gateley, the law firm. Classic examples of this are theft, assault, fraud, falsification of documents or coming into work under the influence of alcohol or drugs. He continues: “It’s not being late for work, it’s not a minor insubordination: it’s activity which indicates the employers doesn’t have to be bound to the employee’s contract anymore.”

Given that the above list is far from intended as exhaustive, some employers will assume it is up to them to define what they do and don’t class as gross misconduct. Whilst there is scope for this, merely placing a particular behaviour under that heading doesn’t mean it will stand up on a legal basis. “If I say being late for work is gross misconduct and I produce a policy saying that, it still doesn’t make it gross misconduct,” Ball says. “The consequence of it needs to be serious.”

There’s something of a misconception around handling cases of severe misconduct that an employer’s right to instant dismissal means that an employee can be let go as soon as one suspects they have breached their contract.

“Instant dismissal just refers to the fact that at the point you’re ready to make the decision, when you dismiss someone it’s instant,” Ball comments. “If I find out you’ve knicked something, it doesn’t mean I can just sack you.” Instead, instant dismissal simply means that when the time for a decision comes, the employer simply isn’t obliged to abide by the standard notice terms in an employee’s contract. “If you breach your contract you don’t get your notice: you’re dismissed instantly,” he continues. “But that sanction is something that will only come into play at the end of a proper procedure.”

In certain cases, an employer may feel under less pressure to follow this procedure. With the recent spinning out the qualification period for unfair dismissal to two years’ employment, some may think they’d be safe from reprisal. “If they find you’ve been stealing something and you’ve only been with them for six months, some people might say: ‘you’re just fired mate: off you go’,” Ball says. But it’s important to recognise unfair dismissal claims aren’t the only reprisal an employer could face. He continues: “There are lots of other claims – all the discrimination claims for example – that are less than two years.”

Because of this, it’s important to always make sure one thoroughly investigates a suspicion of gross misconduct. However, this doesn’t have to be a protracted or complicated process. “It’s relatively simple,” Ball says. “It’s a common sense thing.” An employer needs to meet with the employee involved and allow them representation from colleague or trade union representative, explain their suspicions and present them with the evidence, before inviting them to outline any mitigating circumstances. Ball explains: “It’s not a forensic, police-style investigation but I only make my mind up when I’ve heard what they have to say and I’ve investigated reasonably.”

And once an employer has established whether, more likely than not, an employee has committed an offence, it is important to bear in mind that instant dismissal may not always be the most appropriate response. “The employer should never say: ‘I’ve got no option but to dismiss you’; that’s not a reasonable approach,” Ball comments.

It’s not common but sometimes the mitigation given by an employee means an employer will give them a second chance. In these cases it is important to formally explain that your reluctance to terminate their employment isn’t because a lack of established guilt but because the mitigation they have provided is enough you are prepared to give them one last chance. Ball says: “Effectively you would say: ‘you have committed this offence, I could dismiss you but I have heard that your child is ill and only because of your mitigation I’m offering you a first and final written warning.’”

Whatever your findings and decision, it’s also important a member of staff is allowed their right of appeal. “If I just dismiss you and don’t allow you an appeal, then procedurally that’s likely to be an unfair dismissal,” explains Ball. He refers employers to the ACAS Code of Practice on discipline and grievance, which sets out an effective appeals process, but effectively the most important thing is that another, more neutral party is able to review the case and assess the appropriateness of the decision. “You should have a manager who is more senior than the one who made the original decision consider the appeal and they should have the ability and seniority to overturn the original decision.”

Clearly, the purpose of working through all of these processes is to ensure an employee feels they’ve been treated fairly and to minimise the chances of it being taken to a tribunal. But, as Robert Burns put it, “the best laid plans of mice and men often go awry”. 

So if you do end up facing a claim, what’s the best line of defence? In Ball’s opinion, it’s all about the paper trail. “That’s where the employer usually falls down,” he comments. “The tribunal is able to say: ‘you weren’t in a position to make a reasonable decision because you hadn’t done this or done that’.” Given dealing with misconduct is about making the most reasonable decision taking into account all of the information presented to you, demonstrating you have a good handle on that information is absolutely vital. Ball continues: “Essentially, good notes of meetings, good letters and good documents are the best way of showing that.”

Ultimately, it’s easy to assume when dealing with gross misconduct that the ball is always in the employer’s court. But it’s worth making sure you have a firmly ironed out process to keep yourself safe. 

Josh Russell
Josh Russell

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