An Employer’s Guide to Employee Gross Misconduct in the Workplace

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I think it is fair to say that most queries we receive from businesses are related to the conduct of their staff.

Fortunately, most cases concern low levels of misconduct which can be tackled formally or informally but seldom result in someone losing their job. However, sometimes the actions of an employee are so severe that gross misconduct dismissal seems the only option.

This article will focus on distinguishing between gross misconduct or sackable offences at work and other kinds of misconduct whilst dispelling a few commonly held myths about gross misconduct at work along the way and looking at some serious misconduct examples and frequently asked questions. From a final written warning for gross misconduct to termination for gross misconduct,  this article lays out the best approaches alongside the pros and cons for all the essential disciplinary procedures for all circumstances leading to a potential employee gross misconduct case. 

What is considered gross misconduct at work?

Most employee handbooks will give a list of examples of gross misconduct, such as:

  • Theft/fraud
  • Threatening/violent conduct
  • Harassment
  • Serious breaches of health and safety
  • Incapacity to work due to alcohol or drugs

However, these lists are not exhaustive, and examples of serious misconduct in the workplace vary and depend on the type of industry. Put simply, gross misconduct or gross negligence at work is conduct that shatters the trust and confidence placed in an employee, resulting in an employer is legally able to enact gross misconduct procedure and terminate their employment without notice or any payment in lieu of notice. This is also known as ‘summary dismissal’.

Can I enact a gross misconduct procedure to sack any employee on the spot?

No. I often hear employers use the phrase ‘instant dismissal,’ which is not what a summary dismissal is. There is still a requirement for you to follow a fair gross misconduct procedure despite how serious the allegations of employee misconduct are.  

REMEMBER– an employee with over two consecutive years’ service can claim unfair dismissal.

What should I do if I suspect an employee has committed an act of gross misconduct?

Take advice, call our experts and find out if the employee’s actions constitute gross misconduct. Do not delay in doing this, as most cases of gross misconduct fall foul of the law in those very early stages.

Do I have to suspend the employee for gross misconduct?

Most allegations of gross misconduct require suspension from work. Suspension for misconduct in the workplace has to be handled carefully to give an impression that you are dismissing the employee there and then or have already made your mind up as to their guilt.

Suspension during the gross misconduct procedure is a holding measure and allows a proper investigation to take place; it can be challenging to do this fairly with the employee on the premises. It may also have a bearing on the fairness of your decision of termination for gross misconduct. Imagine the suspecting a particular employee is stealing money from the till; that employee then continues to work on the till for two weeks before being suspended from work. How will you justify a dismissal because the employment relationship has been irrevocably destroyed if you allowed the employee to continue to handle cash whilst under suspicion?

Can gross misconduct be a one-off event, or is it a series of events?

Both. If we use the example of theft again, you do not have to catch the employee in the act numerous times. They may have been stealing from you for a while without being under suspicion, or they may be caught for the first time. Both scenarios should lead to gross misconduct termination. 

How long do you have to suspend an employee?

For as long as it takes to investigate the gross misconduct

 allegations, such as interviewing any potential witnesses, viewing CCTV, etc. It shouldn’t be in place for too long because the suspension is paid, so it costs your business before deciding on gross misconduct termination. 

I’ve got all the evidence together. I have also interviewed the employee under suspension for gross misconduct; now, what do I do?

You will likely now be in a position to progress to a formal disciplinary hearing for gross misconduct. The workplace misconduct evidence needs to be presented to the employee. It is usually sent to them with a letter inviting them to attend the disciplinary hearing for the alleged offence.

REMEMBER! The person who investigates the allegations of gross misconduct at work should not then chair the formal disciplinary hearing*. If this happens, this makes you judge, jury and executioner of the whole gross misconduct procedure and may make any decision of termination for gross misconduct procedurally unfair.

*There may be exceptions for small businesses*

I have found my employee stealing for a second time; I told her last time that it would be gross misconduct if she did it again.

This is a common problem and an example of serious misconduct we hear about numerous times when advising on gross misconduct cases.

Not all allegations of gross misconduct will automatically lead to dismissal; however, if you did not class the first incident as gross misconduct, you would have a hard time justifying a summary dismissal on the second incident.

In effect, you have set yourself a dangerous precedent by your failure to take action the first time, but we can ensure this does not happen when taking advice.

Does the right to appeal apply in cases of gross misconduct?

Yes. Again please try to allocate someone to hear any gross misconduct appeal not involved in the original investigation or the decision to dismiss*.

The appeal period is usually around 7 days. Check the contract!

Gross Misconduct: Important questions answered for employers

Gross Misconduct Questions Answered for Employers FAQs 

If an employee resigns before the disciplinary gross misconduct procedure has been completed, can you accept it without any implications?

Yes, as long as the resignation is not contentious in any way. For example, as long as the resignation does not contain grievances. You should also never ask the employee to resign or imply it would be better if they did so because they will be dismissed anyway. Please also ensure that it is tendered in writing and advice sought before accepting a resignation.

Can I record a gross misconduct investigation if we do not have a note-taker?

Yes, you can. Just ensure that all those present agree to the disciplinary procedure meeting being recorded. Be aware that you will be required to give all attendees a copy of the gross misconduct meeting recording.

You should be aware that the recording will also need to be transcribed.

What would the procedure be if a staff member committing an allegation of gross misconduct was an agency employee not employed by us?

The employer should carry out formal disciplinary hearings. If someone not employed by you were to commit an allegation of gross misconduct, you would need to raise that with the person/s responsible for their employment.

Can the person who is chairing the disciplinary hearing for gross misconduct in the workplace also be a notetaker?

Yes, they can, but it is pretty tricky to chair and take notes, so having a note taker is preferable. The note taker is not involved in the gross misconduct proceedings, so in theory, anyone can be appointed as a note-taker.

Do we have to give notice if arranging an investigatory meeting?

A gross misconduct investigation meeting is informal, so you do not have to do so unless your disciplinary procedure states that you must give notice.

Is a disciplinary gross misconduct procedure required for bank/zero-hours staff?

Bank/causal/zero-hours staff are usually categorised as ‘workers’ (see our article on the critical differences between workers and employees here.

Technically protection from unfair dismissal doesn’t apply to workers, so the requirement to carry out a full disciplinary gross misconduct termination procedure may not be necessary. However, there may be occasions where someone you believe to be a worker has employee status, so before terminating the contract of someone who has ‘worker’ status, you should seek our advice.

What would you do if you found out someone had committed theft/fraud against the company after they had handed in their notice and left the company?

The employment contract has ceased, so there would be no recourse under the gross misconduct procedure. However, you may wish to place the matter in the hands of the police and consider if it is appropriate to take legal action against the individual for the recovery of stolen money/items.

If the employee is in their probation period of 3 months, would the gross misconduct procedure be the same?

We should still be fair to the employee, but dependent upon the circumstances, the matter may be addressed by simply having a probationary review with the employee and potentially letting them go that way. If you did that, though, you might still be liable for notice. Instead, it may be better to carry out a shortened version of the work gross misconduct disciplinary proceedings because of the person’s short service. It will depend on the circumstances and if they constitute gross misconduct, so advice must be taken.

Can a company director do the investigatory meeting and the appeal, and the manager does the disciplinary gross misconduct meeting (we are a small company)?

Your disciplinary procedure should have provisions on handling gross misconduct at work appeals if you are a small company. The critical thing here is to ensure that the person chairing any appeal has the appropriate authority to overturn the original disciplinary decision. So in this instance, my preference would be to have the manager do the investigation and the Director carry out the disciplinary and the appeal.

Do gross misconduct investigation meeting minutes need to be signed, and the employee is given a copy?

Yes. All gross misconduct meeting minutes should be signed and copies given to the employee.

Can gross misconduct witness statements be anonymous?

They can be kept anonymous during the investigation stages, but the names of gross misconduct witnesses should be made available to the employee being disciplined before the disciplinary hearing.

Does the gross misconduct investigation stage have to include the person who is being accused, or can it just involve the witnesses?

The critical thing to remember is that the person accused of an allegation of gross misconduct is also a witness. They must be spoken to gather the facts of what has happened before the investigation stage is concluded. Otherwise, any dismissal or gross misconduct termination is likely to be unfair.

Can an employee come back to you at a later date to say they felt forced to resign, even though it was their own choice to go during the process?

There’s nothing to stop someone from trying to say that. The best way of avoiding this is to ask them if they are sure they want to resign and ask them if they are resigning of their own volition. You can then make a note of their response.

If they resign during a gross misconduct investigation or disciplinary hearing, you could ask them if they are sure this is what they want to do and ask them if it is their decision. Their responses will then be recorded in the minutes. Still ask for the resignation in writing as well, though.

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