What is Gross Misconduct?

Gross misconduct might include bullying at work.

Gross misconduct is the most serious type of misconduct in the workplace and is usually regarded as so serious that it will lead to summary dismissal without notice or payment in lieu of notice.

What are examples of gross misconduct?

Disciplinary policies should give a list of the things that will amount to gross misconduct.  Things like:

• Theft
• Fraud
• Violence or fighting at work
• Serious breach of health and safety
• Sexual harassment
• Serious insubordination
• Gross negligence
• Alcohol or drug misuse

How do you prove gross misconduct?

When allegations of gross misconduct are made, employers will usually consider dismissing if the employee is found to have committed gross misconduct. However, it’s important to ensure that it’s reasonable to conclude that the employee did indeed commit gross misconduct, and that it’s reasonable to summarily dismiss them as a result. You do that by conducting a reasonable investigation and going through a fair process.

Do you need an investigation for gross misconduct?

You should still conduct an investigation.  You still have to prove the employee committed the act, and that it was so serious that it counts as gross misconduct.  Depending on the available evidence, and any particular procedural requirements in the organisation, it’s often possible to conduct a rapid investigation.

Even if you aren’t worried about unfair dismissal because the employee has less than 2 years’ service, they’ll have a wrongful dismissal claim – in which they’d seek their notice pay – if you summarily dismiss where you don’t have the right to do so.

Gross misconduct may result in instant dismissal.

Can you be sacked on the spot for gross misconduct?

Yes. Employers can dismiss at any time, with or without a reason – as in, employers have the power to dismiss.  The question, though, is whether the dismissal is fair, unfair, wrongful or discriminatory.

Provided you’ve followed a fair procedure, you can fairly dismiss the employee immediately at the end of the process. However, the question is whether it’s fair to summarily dismiss immediately you become aware of the alleged gross misconduct – before you’ve conducted an investigation or heard the employee’s side of the story.

The risks to an employer of taking action too swiftly will depend on the employee’s rights – unfair dismissal applies from 2 years’ service, and all employees and workers are protected from discrimination from day one of employment.

There’s a balance between a kneejerk reaction intended to remove a problem employee without delay, and a rapid but fair procedure that minimises risk – we can guide you through a commercial and robust process based around the risk you’re prepared to bear.

Is it better to resign before being sacked for gross misconduct?

There are benefits to resigning before being dismissed, in that you can say you resigned rather than that you were sacked.  However, it can look somewhat like an admission of guilt and doesn’t always help you to manage the terms of your departure.

Also, it can be risky to resign without giving notice, so if you do give notice, the flip side is that there’s no reason why the employer can’t continue the disciplinary process even after you hand in your resignation. Employers can have good reasons for wanting to complete – and to be seen to complete – a disciplinary process.

There are high stakes involved for both parties in a case of alleged gross misconduct.  It’s worth getting advice, whichever side you’re on and whatever you want to achieve from the process, so we can help put together a strategy to get you where you want to be.

Need more help?

If you need more help with the subjects covered here then do reach out to our expert employment solicitors.  You can speak to our employment solicitors online via email employment@qlaw.co.uk or call us on 03300 020 863.

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