Gross Misconduct: Important questions answered for employers
Gross misconduct is the most severe form of misconduct an employee can commit. It is rare and is a type of conduct which shatters the trust and confidence placed in an employee. This results in an employer being legally able to terminate their employment without notice or any payment in lieu of notice, known as ‘summary dismissal’. It is imperative that a fair disciplinary procedure is followed prior to any dismissal.
For more information on gross misconduct please visit our article here.
In this article we look at the key questions posed by some of our clients who attended our client training webinar on the topic of gross misconduct earlier this year.
- If an employee resigns before the disciplinary procedure has been completed, can you accept 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 are going to be dismissed anyway.
Please also ensure that prior to accepting a resignation, it is tendered in writing and advice sought.
- If we do not have a note taker, can we record the investigation?
Yes, you can. Just ensure that all those present agree to the meeting being recorded and be aware that you will be required to give all attendees a copy of the recording.
You should be aware that the recording will also need to be transcribed.
- What would the procedure be if a member of staff committing an allegation of gross misconduct was an agency employee not employed by us?
Formal disciplinary hearings should be carried out by the employer.
If someone not employed by you were to commit an allegation of gross misconduct, then you would need to raise that with the person/s responsible for their employment.
- Can the person who is chairing the disciplinary hearing also be notetaker?
Yes, they can but it is quite tricky to chair and take notes, so having a note taker is preferable. The note taker is not involved in the proceedings so in theory anyone can be appointed as a note taker.
- Do we have to give notice if arranging an investigatory meeting?
An investigation meeting is informal, so unless your disciplinary procedure states that you must give notice, you do not have to do so.
- Is a disciplinary procedure required for bank/zero hours staff?
Bank/causal/zero hours staff are usually categorised as ‘workers’ (see our article on the key 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 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 contract of employment has ceased, so there would be no recourse under the disciplinary 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 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 may still be liable for notice.
Instead, it may be better to carry out a shortened version of the disciplinary proceedings on account of the person’s short service. It will depend on the circumstances though, so advice must be taken.
- In terms of who carries out each stage of the disciplinary process, can a director of the company do the investigatory meeting and the appeal, and the manager do the disciplinary meeting- we are a small company?
Your disciplinary procedure should have provisions in place on handling appeals if you are a small company.
The key 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 investigation meetings need to be signed and the employee given a copy?
Yes. All meeting minutes should be signed, and copy given to the employee.
- Can witness statements be anonymous?
They can be kept anonymous during investigation stages but prior to the disciplinary hearing the names of witnesses should be made available to the employee being disciplined.
- Does the investigation stage have to include the person who is being accused or can it just involve the witnesses?
They key thing to remember is that the person accused of an allegation of gross misconduct is also a witness. They must be spoken to in order to gather the facts of what has happened before the investigation stage is concluded. Otherwise, any dismissal that follows is likely to be unfair.
- What happens if you haven’t got suitable space/venue at the moment due to the pandemic?
Zoom (or similar conferencing app software) is an acceptable means of conducting hearings during the pandemic.
- If further investigation has to take place, does it go back to the original investigating officer?
- Can they 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 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 an 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.
And finally…. for details of our upcoming webinars and live training events, please contact us at firstname.lastname@example.org