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How gross misconduct should be distinct from other misconduct
In this article, we review the technical factors that distinguish gross misconduct from less serious forms of misconduct and provide some tools and advice to get some of the procedural requirements right. Gross misconduct is misconduct which is extreme or abnormal (gross) and is blameworthy. It is so serious that it constitutes a fundamental and repudiatory breach which irrevocably destroys the heart of the contract. Misconduct of this type is bad enough that in the given circumstances, an employer cannot reasonably be expected to employ the individual any longer. For this reason, acts of gross misconduct warrant dismissal without notice.
If an employee has committed an act that you wish to treat as gross misconduct in the past but was not dismissed for it the first time around, then a gross misconduct dismissal may be legally ‘unfair’ the second time around. This is because the employer’s inaction the first time around has set a precedent and in effect, categorised the act as being something lesser than gross misconduct.
In short, an act either warrants dismissal without notice in the first instance, or it doesn’t!
What the law says
Despite ‘gross misconduct’ being a well-used phrase by employers, gross misconduct (GM) dismissals notoriously tend to fail at tribunal.
Whether a dismissal case is lost or won in tribunal is determined by two measures:
• Firstly, whether the written law (Acts and regulations etc) have been complied with correctly.
• Secondly, whether precedents that have been set by case law have been applied appropriately.
In the Employment Rights Act, the main references that are worth a mention concern notice and the fact that in some cases, employment may be terminated without notice due to conduct. Otherwise, gross misconduct is not really discussed in this enactment. For this reason, most of our understanding about what would or would not be accepted as gross misconduct in tribunal is derived from case law.
By case law, we mean previous tribunal claims that have been ruled on. When a case is given an outcome, the judge writes up their findings and conclusions. Within this write up is details of their interpretation of the law and how it should be applied in the circumstances. There are usually references to previous rulings and how the outcome of those are applicable in reaching a conclusion in the case in question. Cases that lend themselves to becoming ‘case law’ (or common law) have usually been ruled on at a high level, have been high profile and/or are called ‘land mark’ rulings because of their uniqueness or because they instigate change in otherwise commonly held beliefs and practices. These cases become precedents for how future cases will be judged, and by extension they inform our HR practices.
Factors which determine whether misconduct is gross
Case law teaches us that for a gross misconduct dismissal to stand in tribunal, certain conditions must be met.
1. The misconduct must constitute a fundamental breach going to the heart of the contract
Whether or not it is fundamental will depend on factors such as:
- The severity of the actions eg theft, violence and direct discrimination.
- The nature of the act and the relevance to the employee’s key duties. (Can you still trust the person to carry out their key duties?)
- The nature and circumstances of the employer. (How will this impact reputation, what is common in the culture of that employer? Swearing in one environment may be GM but in another is a daily occurrence etc)
- The impact of the breach.
2. The misconduct must be either deliberate and wilful, or grossly negligent
Consider factors such as:
- Whether there is a clear rule or policy that the employee knew.
- Whether the employee would have known in advance that their actions may be regarded as a sackable offence.
- The motivation of the employee.
- The intentions of the employee.
3. The employer must believe that the employee committed the misconduct at the point of dismissal
There must be a genuinely held belief that the employee committed the (alleged) gross misconduct. This factor focuses on the reason for the dismissal and the proof that supports it. The burden of proof lies on the employer.
Consider the following:
- The evidence that supports the belief
- The evidence that contradicts that belief!
- What the evidence actually shows – don’t make a leap or connection inadvertently
- There must be no doubt in the mind of the person who is responsible for the decision to dismiss, that the employee did commit the gross misconduct allegation(s).
4. The employer must have reasonable grounds for that belief
This factor requires the employer to consider whether, it is reasonable to interpret the evidence available to mean the employee committed gross misconduct, or could it be interpreted differently. The focus on this requirement is on ‘reasonableness’ of perceiving the situation and the evidence as gross misconduct. (However, the obligation to consider reasonableness is reduced if the allegations are about health and safety matters.)
5. All reasonable investigation must have been carried out
When considering if this requirement has been fulfilled, consider the following points:
- Has the employee’s version of events been looked into fully for verification? Not just what we think happened!
- Are there any key statements, reports, documents or footage etc which might shed light on or prove what happened, that have not yet been collected?
- Be thorough …
- … balance this with avoiding invading privacy unnecessarily or involving more people than is required.
6. The decision to dismiss without notice must fall within the band of reasonable responses
This question is asked in respect of any misconduct dismissal. It is essentially the reasonable person test, which asks whether a reasonable employer would dismiss an employee in the same circumstances?
Consider factors such as:
- Length of service (a long length of service tends to be looked upon favourably by a tribunal).
- The employee’s previous disciplinary record.
- The employee’s remorse and subsequent conduct through the proceedings.
- Whether it is likely the misconduct would be repeated. (Are the circumstances so unique and rare that it is unlikely to happen again?)
Further HR Guidance
- For further HR support such as for guidance on suspensions and drafting gross misconduct allegation letters, login to our HR Knowledge Base or call HR Solutions on 0844 324 584o.
- Free HR webinars: for more detailed guidance, you can sign up for HR Solutions’ free webinars on minimising risk at: https://hrstemp.worknest.tech/upcoming-webinars/
- HR Seminars: for upcoming interactive workshops and seminars, find out more and sign up at: https://hrstemp.worknest.tech/upcoming-seminars/
