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what is gross misconduct?
Published 29 January 2025
What is gross misconduct?
There can be many things that occur at work that cause you to feel fearful, uncomfortable or unnerved – but being accused of an act of gross misconduct can be truly terrifying.
So what is gross misconduct? It refers to any action, behaviour or conduct by an employee which is so serious it can justify their immediate dismissal without notice or pay.
Although the consequences for the most shocking acts of work-related bad behaviour can be extremely severe, any employee facing such allegations must always be treated fairly.
It is vital in such cases that an employer conducts a thorough and fair investigation and disciplinary process.
It has happened, and it certainly can happen, that an employee is wrongly accused of gross misconduct, or for an allegation to be incorrectly labelled gross misconduct when in fact it is an act of misconduct – less serious actions e.g. poor punctuality, rudeness etc - which does not warrant dismissal.
If an employer does get it badly wrong, and incorrectly dismisses an employee for any act of gross misconduct, it can be costly, especially if a subsequent claim for unfair dismissal proves successful [ 1 Cited 29.1.25]
As of 6 April 2024, the maximum compensatory award for unfair dismissal is £115,115 or 52 weeks’ pay, whichever is lower. The maximum basic award is £21,000.
What actually constitutes ‘gross misconduct’ and if it will always warrant dismissal can be confusing. Although it is an act so serious it can lead to the termination of an employee’s contract, even in cases where the most serious disciplinary offences are admitted or considered proven, this should not be an automatic sanction.
What are examples of gross misconduct at work?
Here are just six examples of what can be sackable offences at work.
- Theft: Taking anything without permission is usually a deliberate and dishonest act that will often lead to dismissal, regardless of the value of any items taken.
A supermarket worker who had 20 years’ service was dismissed for taking some ‘bags for life’ to put his shopping in after he had finished a night shift [2 Cited 29.1.25]
At an employment tribunal the worker claimed that he was unfairly dismissed, but his appeal was unsuccessful.
- Violence: It is not uncommon in some sectors for employees to come to blows. Any type of physical aggression or threatening behaviour in the workplace will usually be found to amount to gross misconduct. Employers have a duty to ensure that the working environment is safe for all staff.
- Fraud: is a planned and deliberate act of deception often committed for selfish reasons and personal gain. The level of dishonesty can vary from stealing tens of thousands of pounds to inflating expenses claims.
- Gross Negligence: All employees are expected to perform their duties and tasks to the appropriate standard and with due care. Failing to do so, especially in a safety critical role and putting others at risk as a result of what you do or have not done, is extremely serious.
- Substance Abuse: Illegal drugs are a scourge of modern society. Arriving at work under the influence of drugs or alcohol is both dangerous and unprofessional. Employers in some sectors carry out testing at work, and a failed test can have serious consequences for an employee. Although the response to any failed test does need to be careful and fair.
A bus driver who was fired after testing positive for cocaine won almost £40,000 after an employment tribunal ruled he was unfairly dismissed [3 Cited 29.1.25 ].
Traces of cocaine on the money the driver handled were said to have contaminated the test.
- Discrimination and harassment: All employees are protected from all types of discrimination from their first day in any job. Bullying or harassment that is based on a protected characteristic e.g. race, age, religion etc, is unlawful and completely unacceptable.
Most disciplinary policies will include a non-exhaustive list of examples of behaviour that will be considered an act of gross misconduct, which can lead to dismissal.
What happens if an allegation of gross misconduct is upheld?
It will generally give an employer grounds to dismiss an employee, but it should not be an automatic response.
Most disciplinary policies will include with the list of gross misconduct offences wording to the effect of it is ‘….an indication of offences which will constitute gross misconduct and may lead to disciplinary action or dismissal.’ The word ‘may’ does demonstrate dismissal is not always guaranteed.
Dismissal may not always be within the range of reasonable responses, as mitigating factors may mean that the sanction of dismissal is not in fact reasonable.
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 them 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:
- Did a disability mental or physical play a direct role in what occurred
- Any significant matters outside of work that influenced what happened
- Has the employee shown remorse and taken appropriate learning from the case.
- Length of service and disciplinary record.
- If the conduct is out of character for a trusted employee.
Alternatives to dismissal with a finding of gross misconduct can typically include a final written warning, demotion or a transfer. Sometimes it can lead to a protected conversation and the parties reaching a settlement agreement to resolve all matters [4 Cited 29.1.25 ]
Should an employee facing any gross misconduct allegation be suspended from work?
Typically gross misconduct allegations are extremely serious and can justify suspension from work.
An employer should only consider suspension if it reasonably believes it would protect any of the following [5 Cited 29.1.25]:
- The investigation – for example if it is concerned about someone damaging evidence or influencing witnesses.
- The business – for example if there is a genuine risk to customers, property or business interests.
- Other staff.
- The person under investigation.
What can an employee expect from the investigation and disciplinary process
The investigation and disciplinary process to consider any allegation of gross misconduct should be thorough and fair, and adhere to the good practice guidance provided with the ACAS Code of Practice [ 6 Cited 29.1.25 ]
The more serious the allegation, the more thorough the investigation should be. Employers are encouraged to ‘keep an open mind and look for evidence which supports the employee’s case as well as evidence against.’
Any evidence gathered during the course of the investigation, including witness statements, should be shared with the employee prior to a disciplinary hearing.
If the employee opts to exercise their statutory right to be accompanied at the hearing by a work colleague or trade union representative, the companion is allowed to present the response to any gross misconduct allegation, respond to any points that have been raised at the meeting and ask questions.
If any gross misconduct allegation is upheld and an employee believes the decision is unfair, then they have the right to appeal. A statutory right to be accompanied also extends to a disciplinary appeal hearing, and as it is the last chance to challenge the outcome it is advisable to take advantage of the best help available.
If you are facing gross misconduct allegations at work, or if you have been dismissed for serious misconduct or issued with any type of disciplinary sanction that you believe is unfair, we can help you.
Our skilled and experienced trade union representatives are experts in supporting employees who are facing, or have been dismissed for, gross misconduct allegations. If you need the invaluable support of one of our accomplished trade union reps in such a situation, contact our Employee Support Centre or call us today for a free initial consultation on 0333 772 0611.
