Should dismissal always be inevitable with a finding of gross misconduct?

The question as to if a finding of gross misconduct should automatically lead to dismissal has always been a contentious one – but it will no longer be for police forces in England and Wales.

Gross misconduct is the most serious form of employee wrongdoing[1 cited 11.9.23]

It can include physical violence, bringing an employer into severe disrepute, serious misuse of an organisation’s property or name, theft, gross negligence or serious insubordination.

An act of gross misconduct considered worthy of dismissal can take place either inside or outside of the workplace. It can lead to immediate dismissal, as long as an employer conducts a fair disciplinary process.

As with all allegations, those that are extremely serious should be investigated and the employee given an opportunity to present their case before any decision is reached.

It is established in employment law that a finding of gross misconduct should not automatically lead to dismissal.

So, the introduction of such a policy by police in England and Wales that will see officers sacked, unless exceptional circumstances exist, is likely to prove controversial.

The move is seen as an attempt to restore the public’s faith in policing following a number of disturbing and shocking cases involving serving police officers.

Firearms cop Wayne Couzens was given a whole life term after being convicted of the kidnap, rape and murder of Sarah Everard[2 cited 11.9.23]

And the Met police officer David Carrick was jailed for life after pleading guilty to 85 serious offences including 48 rapes[3 cited 11.9.23]

The new measures will see chief constables or their deputies chair misconduct panels hearing serious allegations against officers, whereas previously they have been chaired by an independent lawyer.

The Police Federation, the staff association that represents the interests of police officers, said corrupt officers have no place in the service and the dismissals process must be robust and swift to remove those who do not belong in the service, but it expressed concerns about the move[4 cited 11.9.23]

Steve Hartshorn, national chair of the Police Federation, said in a press release: “Chief constables presiding once again over misconduct hearings is a huge retrograde step during a pivotal moment where we are looking to improve the service and restore public confidence

“Legally qualified chairs [LQCs] were introduced for sound and legally reasoned judgments, reduced appeals, fair and consistent decisions, greater transparency and increased public confidence. It was a system which was working, and the Government should have taken steps towards strengthening the role of LQCs, who were unbiased and free of undue political and social pressures.

“A return to the dark days, a return to kangaroo courts, whereby an officer is already guilty in the eyes of the chief officer before any evidence is heard, and they already know what outcome they want to see, is deeply concerning.”

There are many reasons why any employer in any sector may disagree with the Police Federation view, and believe automatic dismissal for an act of gross misconduct is a good idea.

After all it can protect the reputation of an employer, serve as a good deterrent to employees and it provides consistency and clarity that may make it difficult for employee to challenge in any unfair dismissal claim.

But a fair and reasonable disciplinary process is a fundamental principle in employment law. An automatic dismissal policy may undermine such a principle in having what seems like a predetermined outcome, which does not allow for each case to be judged on its individual merits.

There are many examples of employment tribunal cases in which a dismissal for gross misconduct has been found to be unfair.

Just one example, is an IT manager who was awarded £1m following an unfair and discriminatory dismissal when he was sacked for gross misconduct after an altercation with a third-party van driver in a car park[5 cited 11.9.23]

The tribunal found that the employer had failed to consider the employee’s mental health condition, which affected his behaviour, and had not followed its own disciplinary policy. The tribunal also found that he had been subjected to race discrimination and harassment.

Employers should always exercise caution in any disciplinary case, especially one that can lead to dismissal.

Why automatic dismissal may not always be fair with a finding of gross misconduct

Such a decision may not fairly take into account the specific circumstances of a case and, therefore, dismissal is not always necessarily within a band of reasonable responses.

Even with the most serious of allegations, compelling mitigating factors may mean that a sanction of dismissal is not in fact reasonable.

Employers must carefully assess whether such factors warrant a less severe disciplinary sanction being imposed.

Mitigation may help to explain or excuse the employee’s actions, or anything that might have influenced them to act in a particular manner that has led to the individual facing disciplinary action.

An employer should always think about whether such reasons warrant a lesser disciplinary warning being issued.

Some examples of mitigating factors that employers should consider are:

• Does the employee suffer from, or are they claiming, to suffer from any current physical or mental illness that influenced and can explain the actions under consideration at a disciplinary hearing. For example, stress and anxiety can affect how you feel physically, mentally and how you behave.

• Does the employee have a disability that could have influenced their conduct, wholly or partly? For example, an employee who has dyslexia and fails to write an important report in time to meet a strict deadline should not be treated the same as an employee who does not have the learning difficulty.

• Could any significant personal difficulties outside of the workplace have impacted on what occurred e.g. bereavement or divorce.

• Length of service in that if the employee is long serving and has an exemplary disciplinary record, then a lesser sanction than dismissal might be more suitable.

• Remorse and if the employee regrets what has occurred, is apologetic and taken appropriate learning from it.

• And if based on all of the evidence the individual deserves a second chance.

Finding a middle ground between automatic dismissal and fairness is essential to meet the balance between protecting an employer’s interests and rights of an employee.

Alternatives to dismissal

In line with most company disciplinary policies, alternatives will usually include issuing a final written warning that will typically expire after 12 months, or issuing an extended final written warning e.g. expires after 18 months.

Many disciplinary procedures with a finding of gross misconduct also include options of demotion where appropriate, a transfer to a different location or a period of suspension without pay.

Any sanction should not be disproportionate, discriminatory, or inconsistent with the disciplinary policy and procedure.

And it should only be imposed after careful consideration of an employee’s circumstances, previous record, and any mitigating factors.

How an employer should address allegations of gross misconduct

Follow the guidance in the ACAS Code of Practice[6 cited 11.9.23]

Key to handling such matters is:

Establish the facts of each case.

Inform the employee of the problem.

Hold a disciplinary hearing and allow the employee to be accompanied.

Decide on appropriate action.

Allow the employee the right to appeal.

Conclusion

The question of whether a disciplinary finding of gross misconduct should always result in automatic dismissal is not a straightforward one to answer.

While it may be justifiable in some cases, it should not be applied generally without reasonable consideration for fairness, balance, and proper process.

Employers must conduct investigations that are thorough and fair and take account of mitigating factors to ensure that disciplinary decisions regarding a finding of gross misconduct are reasonable, justifiable and legally fair.