Gross misconduct should not mean dismissal is an automatic sanction

When allegations of gross misconduct are upheld there is a temptation for an employer to believe that the outcome is inevitable…sometimes it can be anything but.

Gross misconduct is behaviour, on the part of an employee, which is so bad that it destroys the employer/employee relationship, and merits instant dismissal without notice or pay in lieu of notice.

A disciplinary policy usually provides a non –exhaustive list of examples of behaviour that meet the definition of gross misconduct. It will typically include theft, fraud, physical violence and serious breaches of health and safety.

There have been many high profile cases where evidence of employees apparently misbehaving have been captured on camera and shared repeatedly online, and the evidence of wrongdoing appears irrefutable.

A recent example included film of three McDonald’s workers reportedly beating up a drunk and racist customer outside a London restaurant. (1)

Even with what appears to be overwhelming evidence at hand, the normal disciplinary procedure should still be followed. (2)

The facts of the case should be established without delay and the employee can be invited to an investigation meeting in order to establish the facts of the matter before instigating disciplinary action. (3)

It may be appropriate to suspend the employee in order to carry out an investigation, and during this time the individual should be paid at their normal rate. (4)

If there is a case to answer the employee should be invited to attend a disciplinary hearing, which adheres to the practical guidance in the Acas Code of Practice. Tribunals can adjust awards by up to 25 per cent in cases where an employer unreasonably fails to comply with the Code. (5)

The employee should be allowed to fully respond to any allegations made against them and present any mitigation in support of their case.

If an allegation of gross misconduct is considered proven dismissal is not always an automatic sanction. (6)

Careful consideration should be given to factors such as length of service, previous disciplinary history, any remorse shown by the employee, if the conduct is out of character for a trusted employee and the consequences of the misconduct.

A disciplinary policy can contain details of alternatives to dismissal, which can include demotion where appropriate, a transfer or an extended final warning

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