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Gross Misconduct: FAQs For Dismissing Staff
Gross misconduct is an incredibly serious matter. That is why, as unpleasant as it may be at times, it is important to have a comprehensive understanding of it.
In this article, we offer a comprehensive guide to dismissing an employee for gross misconduct, specific to the UK, today.
- What Is Gross Misconduct?
- What Is Gross Misconduct at Work?
- How Is Gross Misconduct Reflected In An Employment Contract?
- How To Deal With All Types Of Misconduct
- What Happens If Gross Misconduct Was An Accident?
- How Should Organizations Deal With Gross Misconduct?
- How HR Should Approach Gross Misconduct
- How Does Gross Misconduct Affect Future Employment?
What Is Gross Misconduct?
Gross misconduct is the term used to explain wrongful, improper, or unlawful actions which are particularly obvious and unacceptable. Another way of describing gross misconduct is flagrant criminality. It's just wrong.
When an employee conducts an act of gross misconduct, they violate norms in a way that breaks trust and confidence between people and makes it impossible to continue working with them. It may even cause financial, mental, or physical harm, property damage, or damage to your company’s reputation.
What Is Gross Misconduct at Work?
Generally, the term ‘gross misconduct’ is only used in the context of work – but to understand what gross misconduct is, and why it’s so important to take immediate action when an employee commits an act of gross misconduct, here are a few examples…
What Are Some Examples of Gross Misconduct?
If an employee lies, steals, cheats, or commits fraud – that’s gross misconduct.
If they damage property, or a company’s reputation, or harass its employees – that’s gross misconduct. Gross misconduct can also be when someone causes harm through serious negligence, is unable to perform at work due to alcohol or illegal drug use, or commits a serious breach of health and safety regulations.
Gross misconduct can also be when someone is physically violent, abusive, or bullying, when they show serious insubordination, when they discriminate against others, or seriously misuse a company’s name or property. If someone sabotages your company, that can be gross misconduct, too.
Gross misconduct can also relate to the use of information or resources. Sharing confidential information or acting on it in a way that causes harm or creates profit for themselves can be gross misconduct. So can offering or accepting bribes, a serious breach of confidence, serious insubordination, setting up a competing business, or deliberately accessing pornographic or other illicit, violent, or inappropriate websites using work equipment or while at work.
How Is Gross Misconduct Reflected In An Employment Contract?
When companies put a clause in their contract that sounds anything like this, "The Company can terminate the Executive’s employment and the Period of Employment at any time for Gross Misconduct,” it allows them to take punitive action if employees do bad things.
Often, in employment contracts, examples are provided of gross misconduct – but it’s always good to cover yourself, as it’s not possible to list all the examples of types of misconduct. So, be wise, and put a clause in that explains the list is not intended to be exhaustive.
Is There A Difference Between Misconduct and Gross Misconduct?
Yes. General misconduct means that an employee is not doing the right thing, but it’s not usually serious enough for someone to be fired.
Some examples of misconduct include:
Using company equipment, tools, or facilities without getting permission
Generally showing a lack of interest in, or ability to do, work
HR must treat instances of misconduct and gross misconduct differently. But, it can be difficult to tell where misconduct ends and gross misconduct begins.
At times like this, it’s wise to get senior management involved and it may even be necessary to get legal advice. It also helps to set up an HR process or procedure for what HR can and will do when misconduct or gross misconduct takes place (before any incidents occur).
Dealing with general misconduct requires a more understanding, consultative approach. Dealing with gross misconduct allows you to take much more drastic action.
Does Gross Misconduct Require An Investigation?
It does require you to conduct an investigation, but it doesn’t necessarily require you to give employees another chance to improve or change their behavior before you take action – including advising them that you are terminating their employment.
How To Deal With All Types Of Misconduct
Acas has published a Code of Practice on disciplinary and grievance procedures so, when it comes to disciplining, reprimanding, or dismissing an employee – it’s best to start by reviewing their guide.
What Is The Acas Code of Practice?
The Acas Code of Practice on discipline and grievance procedures provides basic, practical guidelines to employers, employees, and the people who represent employees when things go wrong in a work context.
It is designed to be a fair and transparent process and helps companies deal with disciplinary situations that encompass misconduct, poor performance, and employee grievances.
Acas recommends that the following rules or guidelines are adhered to, to ensure employee-related issues are dealt with fairly:
Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions, or confirmation of those decisions.
Employers and employees should act consistently.
Employers should carry out any necessary investigations, to establish the facts of the case.
Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made.
Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting.
Employers should allow an employee to appeal against any formal decision made.
Every person in HR who might have to deal with a disciplinary procedure should familiarize themselves with the Code’s 47 steps.
What Happens If Gross Misconduct Was An Accident?
Accidents happen. Ordinary misconduct may be the result of an accident. But that’s not typically the case with gross misconduct. The legal hub Qredible says that gross misconduct is usually a severe act resulting in the breach of trust between an employee and employer, and that acts of gross misconduct must be deliberate.
How do you know whether the act was deliberate or accidental? For example, if someone left a tap on overnight which caused flooding, could that have been accidental? Similarly, what happens if an employee forgot to lock a safe and something was stolen? Was this ordinary or gross misconduct?
That’s for the investigation team to decide. Not all acts of gross misconduct warrant an employee being dismissed. As we explain below – any follow-up action taken by the employer must be fair and transparent, so it could stand up if an employee makes a complaint to an employment tribunal.
How Should Organizations Deal With Gross Misconduct?
When misconduct is not serious or gross misconduct, acas advises companies to do the following:
Arranging a meeting with an employee, to explain what they’ve done, warn them, listen to them, and prepare them for a final written warning if they don’t change their behavior.
If their behavior doesn’t improve by the deadline, it’s necessary to hold a second meeting and issue a final written warning – telling them you’re considering firing them if they don’t improve.
If they still haven’t met your standards, hold a third meeting. At this stage you can give them another chance to improve or dismiss them. But you must decide their future at this stage, and tell them what your decision is.
How HR Should Approach Gross Misconduct
Unlike general misconduct cases, when gross misconduct takes place, gov.uk says that you can issue a single ‘first and final’ written warning to an employee.
You can also dismiss an employee immediately, or suspend them on full pay – as long as you follow a fair procedure. It is very important that you do investigate the issue and you give them a chance to respond before you decide to dismiss them.
For example, many companies arrange a disciplinary hearing at this stage, and, thereafter, issue a formal letter confirming summary dismissal if the investigations confirm the behavior took place and was, indeed, gross misconduct.
If you don’t dismiss employees fairly, you may open yourself up to a claim of unfair dismissal or wrongful dismissal.
Can You Terminate An Employee For Gross Misconduct?
Yes, you can fire someone for gross misconduct.
As a quick reference, gov.uk says that you can dismiss an employee if:
They’re incapable of doing their job to the required standards.
They’re capable but unwilling to do their job properly.
They’ve committed some form of misconduct.
They also say that you don’t have to go through any specific processes to dismiss someone, at least, not according to law – but you must do it fairly.
And, they also say that if their ability to do their job is related to their health in some way, you should try as many ways as possible to help them do their job before you terminate their employment.
But beware… Whether you witness the behavior or not, every instance of gross misconduct must be investigated. And if you haven’t listed the specific example of an employee’s transgression in your policy, it might be hard to prove it’s gross misconduct.
If in doubt, it’s better not to dismiss someone instantly because, if you’re taken to an employment tribunal, Lawdonut advises that you’d have to prove that your decision would be one that a reasonable employer would have made was itself both fair and reasonable in the circumstances and show that the offense was so wrong that instant dismissal was an appropriate sanction.
How Does Gross Misconduct Affect Future Employment?
It’s uncertain and depends largely on whether an employee chooses to state why they left their previous jobs and whether their new employer approaches you for a reference or not.
Dismissed employees are not required to tell future employers that they were dismissed for gross misconduct. However, as Qredible says, “It’s rarely easy to answer why anyone has left a secure job or a reputable company without eyebrows raising.”
If future employers reach out to you for a reference and ask why your employee was dismissed, it’s important to be honest.
Over time, the employee’s misdeeds will likely fade into their past. But it’s unlikely that your company will forget them, or the damage that they caused, any time soon. For this reason, if no other, it’s important to remember that their actions can cause ripple effects on your current employees.
Be prepared to answer awkward and uncomfortable questions from both affected and curious employees in a way that reassures them, as much as you can, without sugar-coating what really happened. And then get back to focusing on business as normal.
In the short term, you might need to take specific steps to help boost employee motivation or consider strategies to help improve employee retention but, if you do things fairly and transparently, even the bad smell of gross misconduct won’t hang around forever.
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