When an employer dismisses an employee, it may potentially be counted as fair if it happens for one of five reasons. This briefing looks at one of those reasons – misconduct – and what happens to make that misconduct gross misconduct.

Gross misconduct carries with it the implication of a greater degree of seriousness about the misbehaviour than might be the case with ordinary misconduct. Exactly what constitutes gross misconduct will vary from workplace to workplace and will depend on the nature of work being undertaken. For example, a manufacturer may view a breach of its health and safety policy as gross misconduct, because of the risk of serious injury or death involved, whereas an organisation whose employees are based in an office might not view health and safety breaches quite so seriously.

However, the nature of the business notwithstanding, gross misconduct could include such actions as:

• Theft, fraud and dishonesty.
• Offensive behaviour, for example harassment, bullying, fighting, aggressive or intimidating behaviour, threats of violence.
• Breach of health and safety rules, for example removing machinery guards, persistently refusing to wear PPE.
• Damage to property – including deliberate or wilful damage to property or gross negligence that could result in substantial loss or damage to property.
• Serious incapacity or misconduct caused by an excess of alcohol or drugs at work, possession of drugs, taking drugs on the employer’s premises and buying or selling drugs on the employer’s premises.

Of course, this list is not exhaustive, but it will give a guide to the level that misconduct must reach before it can be reasonably be classed as gross misconduct. Employers should make it clear in their policies and rules what behaviour will be regarded as ‘misconduct’ and what is ‘gross misconduct’.

Differences in dismissal requirements
While an employer can dismiss an employee without notice pay or prior warning in the case of gross misconduct and this be counted as fair, they will only be able to dismiss an employee for ordinary misconduct if they have given previous warnings and they will still need to give the employee in question notice, or payment in lieu of notice.

There may be cases in which an employer/employee relationship has broken down but not to the degree where a fundamental breach has happened; in this case, the employer may want the employee gone and the prospect of being able to do so immediately may appear very tempting.

Contriving to class their behaviour as gross misconduct so as to justify the employee’s immediate dismissal is a risky course of action. A dismissal for gross misconduct can have very serious consequences for an employee and so tribunals do tend to look long and hard at the minutiae of cases where someone has been dismissed in this manner and has brought a claim for unfair or wrongful dismissal. Such claims have often been upheld if the tribunal felt that the offence that led to the dismissal had been categorised by the employer as gross misconduct when a good case could be made for treating it as merely misconduct.

If the tribunal decides that the employer has miscategorised the misconduct and finds in favour of the employee, they may award significant compensation, which can be increased if it can be shown that the employer did not follow the ACAS Code of Practice on Disciplinary and Grievance Procedures (see below).

Factors for the employer to consider
When an employer is faced with a case of misconduct and has to decide whether it should be classed as gross misconduct or not, they need to take three factors into account.

Firstly, to be classed as gross misconduct, the behaviour must be so serious that it would be unreasonable to expect the employer to continue to employ the person in question. It must be a fundamental breach, which means it goes right to the heart of the employment contract. This will entitle the employer to dismiss with immediate effect.

Secondly, the behaviour must be both a deliberate and wilful breach of the employment contract, or it must be so serious that it amounts to gross negligence – a grave failure to display the skill and care that would be expected of a person of that grade and experience.

Thirdly, there may not necessarily have been one single act that could, by itself, be classed as gross misconduct but a pattern of behaviour that has gone on for long enough and been sufficiently serious to undermine the relationship of trust and confidence between the employer and employee and therefore could be said to amount to gross misconduct.

What should employers do?
An employer needs to think about what acts and behaviour it feels would amount to gross misconduct, considering what has been covered above, and taking into account the idiosyncrasies of the industry in which it operates. These should then be included in the employment contract or employee handbook as examples of gross misconduct, with the caveat that the list is non-exhaustive.

It is worth bearing in mind, however, that just because a particular action is included in a list of those classed as gross misconduct, it does not necessarily mean it will be accepted as such if the case goes to an employment tribunal. It may make it more likely that the tribunal will find the dismissal fair, but by no means certain.

Tribunal cases in the past have shown that a breach of the policy may not necessarily count as gross misconduct just because that is what the policy says; the employee may not, for example, have committed the action deliberately or it may not have been sufficient to count as gross negligence.

Fairness
In order for a dismissal to be regarded as fair, the employer must demonstrate that:

• The employer genuinely believed that the employee had committed the misconduct;
• The employer had reasonable grounds for believing this;
• In reaching that conclusion, the employer carried out a reasonable investigation; and
• The outcome was within what the employment tribunal considers the band of reasonable responses. If, in the tribunal’s view, no reasonable employer in the circumstances would have dismissed the employee, the dismissal will be considered unfair.

It is very important to ensure that all the steps of the disciplinary process are carried out and that these are documented so that they can be produced as evidence if the employee challenges the outcome of the process through the employment tribunal.

Acas
The Acas Code of Practice on Disciplinary and Grievance Procedures has more on the disciplinary process and the definition of gross misconduct.

It is important to pay attention to this passage:

“A failure to follow the Code does not, in itself, make a person or organisation liable to proceedings. However, employment tribunals will take the Code into account when considering relevant cases. Tribunals will also be able to adjust any awards made in relevant cases by up to 25% for unreasonable failure to comply with any provision of the Code. This means that if the tribunal feels that an employer has unreasonably failed to follow the guidance set out in the Code, they can increase any award they have made by up to 25%. Conversely, if they feel an employee has unreasonably failed to follow the guidance set out in the Code, they can reduce any award they have made by up to 25%.”

Liam Faulkner is an Employment Solicitor at rradar (Leeds office).