Q&A: How to recognise and deal with gross misconduct

Gross misconduct is behaviour so bad that it destroys the relationship between you and the employee, and usually results in dismissal. But it is essential you establish precisely what can be considered gross misconduct or you risk unfair dismissal claims.

Ian Dawson, Head of Employment at Shulmans, explains how to identify and manage gross misconduct.

What is gross misconduct?

“It’s a serious breach of contract and includes misconduct which in your opinion causes serious damage to your business, or irreparably breaks down trust and relationships — for example, if someone hits another employee or is stealing.

“There is no exhaustive list, but it can include theft, physical violence, bullying, damage to property, accessing pornographic sites, damaging your firm’s reputation, inability to work due to alcohol or drugs, breaching health and safety rules, failing to obey instructions, or serious neglect of duty.

“Repeated minor misconduct, such as being late to work, is not gross misconduct, although it can lead to dismissal after previous unexpired warnings.”

Should my staff handbook include examples of gross misconduct?

“Include a list of examples of what usually counts as gross misconduct, but state that it is non-exhaustive as you cannot provide for every eventuality. Each case should be looked at individually and consideration should be given to all the circumstances.”

What procedure should I go through if someone has committed gross misconduct?

“When disciplining an employee you should follow your own disciplinary procedure and the Acas Code of Practice. If you don’t follow the Code it may render a dismissal unfair and could increase the amount of compensation an employment tribunal awards against you.

“If you believe an employee has committed gross misconduct, you may need to suspend them to allow a full investigation to take place. This won’t be necessary in all cases, but it will usually be appropriate in cases of serious misconduct; for example, an employee could interfere with witnesses. If an employee is suspended it should be on full pay.

“Carry out a fair and balanced investigation. At the end of it you may decide that no further action is necessary. However, if matters are to be taken further the employee should be invited to a disciplinary hearing where they will be given the opportunity to state their case and respond to the allegations against them. The hearing should then be adjourned for you to make your decision. You should notify the employee of your decision in writing and inform them of their right of appeal.”

How can I decide if something counts as gross misconduct or not?

“If you’re unsure, get legal advice. In any case, if an incident is not obviously gross misconduct, it’s always better to go for the lesser sanction than to dismiss someone as such a dismissal may be held unfair.”

What are the alternatives to dismissal?

“If you are disciplining someone for gross misconduct and you decide, after consideration of the evidence, that it is in fact misconduct rather than gross misconduct, you can downgrade the offence and give them a warning.

“Alternatively, you may wish to look at demotion, redeployment, a period of suspension without pay or loss of seniority. However, you may only implement these alternatives if you have a contractual right to do so in the employee’s contract of employment.”

For more information on this topic, contact Head of Employment Ian Dawson on 0113 297 7735 or at idawson@shulmans.co.uk.