Questions on gross misconduct. Definitions and examples, including lesser offences that do not amount to gross misconduct and instant dismissal
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.
(Such dismissal without notice is often called ‘summary dismissal’.)
It is strongly advisable to give employees a clear indication of the type of behaviour you consider to be gross misconduct. You can do so in the contract of employment itself or in a staff handbook. Identifying such behaviour in advance will help to demonstrate later on that you regard it as significant. Most employers would identify intoxication (whether from drink or drugs), fighting or other physical abuse, indecent behaviour, theft, dishonesty, sabotage, serious breaches of health and safety rules, offensive behaviour (such as discrimination, harassment, bullying, abuse and violence) and gross insubordination as examples of gross misconduct.
You might want to specify other offences, depending on the nature of your business: for example, accepting or offering bribes, downloading pornography, downloading software from the internet or using personal software (to protect the business against legal risks, and the risk of importing viruses), misusing confidential information or setting up a competing business. If you have policies covering all or any of these activities, you can specify breaches of all or some of them (or of particular activities specified in them) as gross misconduct.
Other lesser offences, often relating to work and work performance - for example poor timekeeping, absenteeism, use of workplace facilities, personal appearance, negligence or sub-standard work - do not usually amount to gross misconduct. However, you may want to specify that repeated incidents of minor misconduct (for example, persistent poor timekeeping) can, cumulatively, amount to a more serious offence.
As smoking in enclosed (or substantially enclosed) areas is illegal, you should identify the steps you will take if employees flout the law (and the steps you would like employees to take if customers or other visitors flout the law).
It is wise to say that the list is not intended to be exhaustive.
Caution should be exercised when dealing with an employee under the influence of alcohol or drugs. If the employee is an alcoholic or drug addict, this should be dealt with as a capability issue in the first instance, and not as gross misconduct.
To a limited degree. But instant dismissal is a very severe penalty, and if the employee takes you to an Employment Tribunal, you would have to be able to demonstrate that your decision:
You would also have to show that the offence was so wrong that instant dismissal was an appropriate sanction. It is always advisable to list the offences which merit instant dismissal in the disciplinary policy - though you should make it plain that the list is not exhaustive.
You must follow fair and reasonable disciplinary procedures, even in gross misconduct cases (see 4).
A range of factors, including:
Your disciplinary procedure, and the way you apply it, must be fair and reasonable. There is an Acas Code of Practice that provides practical guidance and principles to help you (and your employees and their representatives). It sets out the basic requirements of fairness and, for most cases, provides a minimum standard of reasonable behaviour. Your own procedures may require you to do more. The Code also applies to grievance issues.
Failure to follow the Code does not automatically make a dismissal unfair but, if it applies, and you unreasonably fail to follow any of its provisions, an employment tribunal can increase any award made against you by up to 25%.
Again, it would consider a range of factors, including:
For example, it might be reasonable instantly to dismiss a relatively new employee, with reserved references, who comes in fighting drunk one Friday afternoon and tries to punch his foreman. But it might not be reasonable to instantly dismiss a long-standing employee with a good record, who comes in to work after a drink to celebrate the birth of a grandchild.
It is important to be consistent in taking disciplinary action, but it may be that there are strong mitigating circumstances in one case that are not there in another. So you need to investigate all the circumstances thoroughly, and consider them carefully. If you sack one employee for an offence which, in another case, merits only a written or verbal warning, you need to be able to justify your decision to impose a more severe penalty in the one case than the other. Otherwise you could face allegations of unfairness and discrimination. Keep written records of why you did what you did.
In a case that illustrates other factors the courts take into account when considering the issue of consistency, a member of staff who had missed a critical deadline was dismissed, even though another member of staff was still employed, despite missing critical deadlines on three previous occasions. An Employment Tribunal found that the dismissal was unfair because of the inconsistency. But the Employment Appeals Tribunal disagreed: the over-riding question, it said, was whether the dismissal was reasonable, not whether or not it was consistent.
No. If you sack someone without undertaking a proper investigation, holding a disciplinary hearing, giving the employee (accompanied by a companion) the opportunity to put his (or her) case, considering the circumstances, and - if the decision is to dismiss - giving the employee an opportunity to appeal, you will lay yourself wide open to an unfair dismissal claim.
Even if you follow your disciplinary procedure, you can't assume you will be free from criticism by a Tribunal. The Tribunal may consider whether there were any other procedural steps, in addition to those set out in your procedure, that you should have followed before dismissing your employee.
If the offence is sufficiently gross and overt, to merit instant dismissal, you should be able to get your disciplinary hearing and appeal out of the way within two to three weeks (although speed should not override the need for it to be fair). If it goes to a Tribunal it could drag on for months.
You should give examples in the disciplinary policy of what you would consider to be gross misconduct (but state that the list is not exhaustive). In areas where it is possible for employees to assume they are only committing a minor misdemeanour, or even no misdemeanour at all - for example, use of personal software in work computers - you must ensure they are aware of the consequences, if you would treat it as gross misconduct. If an ex-employee can reasonably argue that they were sacked for doing something they had no reason to suppose was a sackable offence, you may lose at an Employment Tribunal.
No. The point of gross misconduct is that it is conduct so bad that you are justified in dismissing the employee instantly (subject to having followed a disciplinary procedure). If you give your employee notice - or pay in lieu of notice - you may weaken your case.
The employee may have the following claims:
Yes. Depending on the circumstances, they may be able to sue you for:
Usually about six months from the date of filing the application. But it may be a shorter period, or much longer, depending on the Employment Tribunal at which it is listed, and the complexity of the case.
That depends on the complexity of the case. The cost is most unlikely to be below £2,000-£3,000, and may be at least double that figure. Depending on the complexity of the case, and your geographical location, it could be three or even four times as much.
Do not forget that costs would not only include the fees to any external advisers, but also the loss of productive activity by company employees involved in defending any claim.
Even if you successfully defend the claim it is not usually possible to obtain an Order requiring the employee to pay any contribution to your costs.
That depends on how good your case is, and the message you wish to give to other employees. Sometimes commercial reality will suggest that it is more cost effective to settle out of court, on a 'nuisance value' basis.
Pursuing 'the principle' will cost money; but on the other hand it will send a powerful message to other employees who might otherwise be tempted into launching frivolous or vexatious legal action.
The Acas 'Early Conciliation' service makes it easier to settle the dispute without going to an Employment Tribunal (see 16).
If you decide to settle, take legal advice on how to record the agreement. Your legal adviser or Acas will be able to assist with this. If not done properly, it will not be enforceable.
The aim of the Acas 'Early Conciliation' service is to help employees and employers resolve disputes as early as possible, without resorting to a Tribunal. The service is free.
Any employee lodging an Employment Tribunal claim must first notify Acas (the government-backed arbitration service) by filling in a simple online form — an Early Conciliation notification form. (A limited number of exemptions may apply, and the Employment Judge can decide whether they are relevant.)
Acas will then contact the claimant to gather further information and the case will be passed on to a conciliator.
If one of the parties does not want to use the service, or if the conciliation did not result in the parties reaching an agreement, Acas will send the employee an Early Conciliation Certificate. This certificate enables the employee to go ahead and make a claim. In terms of time limits, the employee has the same amount of time to make a claim as they did before they started conciliation.
If an agreement has been reached, this will be documented in a COT3 agreement — which is legally binding for the employer and the employee. COT3 is simply the name of the form.
You would need to be able to present:
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