1. What is gross misconduct?
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’.)
2. What counts as gross misconduct?
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 amounting to 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 (e.g.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, not just as gross misconduct.
3. Does this mean I can decide for myself what conduct merits instant dismissal?
To a limited degree, yes. 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:
- would be one that a reasonable employer would have made; and
- it was itself both fair and reasonable in the circumstances
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.
4. What would a tribunal consider in deciding whether a dismissal for gross misconduct was fair?
A range of factors, including:
- Did you have a genuine belief in the employee’s guilt?
- Was it reasonable to hold this belief from your investigation?
- How thoroughly did you investigate the alleged offence?
- Was the employee given all of the information that had been gathered as part of the investigation?
- Did you give the employee an opportunity to state their case?
- Were they entitled to be accompanied by a work colleague or trade union representative?
- Did you hold a disciplinary hearing, chaired by an impartial individual?
- Did you warn the employee they were to attend a disciplinary hearing?
- Did you give them time to prepare for the disciplinary hearing?
- Was the offence gross misconduct, as set out in your disciplinary procedures, and was the employee aware of the penalty that could be imposed as a result of that misconduct?
- Were there mitigating circumstances or other facts that should have been taken into account, for instance, health or domestic problems, provocation or ignorance?
- Were alternatives to dismissal considered?
- To what extent was a similar penalty invoked in similar cases?
- Was the employee informed of their right of appeal and given an opportunity to appeal against the decision to dismiss?
- If you have a policy in the staff handbook for dealing with these issues, did you follow it?
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%.
5. What would a tribunal consider in deciding whether a dismissal for gross misconduct was reasonable?
Again, it would consider a range of factors, including:
- Was the offence gross misconduct – that is, was it serious enough to destroy the contractual relationship?
- Whether correct procedures were used, taking into consideration the law, and the resources and size of your company.
- Whether your response was within a band of responses that a reasonable employer would take.
- Whether you considered alternative sanctions eg a transfer, demotion or suspension.
- Whether mitigating factors were taken into account, such as the past history of the employee involved, his (or her) age, position, length of service and previous warnings.
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.
6. But surely our response to misconduct has to be consistent?
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.
7. I thought instant dismissal meant sacking someone on the spot, and that was that?
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.
8. Should we spell out what we would consider to be gross misconduct in the employee’s terms and conditions?
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.
9. If an employee has done something that obviously counts as gross misconduct, what procedure should I adopt?
- Limit the damage. For example, if it is someone who has come in drunk, it may be necessary to remove them from the premises, especially if they are in charge of machinery. Generally speaking, however, the employee should remain at work, or (if you have the contractual right) be suspended on full pay, pending an investigation.
- Carry out an investigation. Are you certain it was drunkenness, rather than a medical condition? If it was drunkenness, was it self-induced, or is there any possibility that someone had spiked their drink? If you have not already done so, you may decide at this stage to suspend the offending employee (on full pay) while the investigation and disciplinary process continues.
- Interview all relevant witnesses, including the employee.
- If the investigation suggests that disciplinary action is warranted, call a disciplinary hearing. Give the employee ample warning (say, three days), and tell them they may be accompanied at the hearing by a work colleague or union official.
- Make sure the employee is well aware of the allegations before they attend the meeting. You are now legally required to give written details of the offending behaviour, and the reasons why you believe the employee is responsible for it. You should provide this when you ask the employee to attend the disciplinary hearing – which should also be done in writing.
- Give access to any evidence on which you will rely, including documents and statements from any witnesses, prior to the disciplinary hearing. Again, provide this when you ask the employee to attend the disciplinary hearing.
- Ensure the disciplinary hearing will be conducted by an objective and impartial person who has not been involved in the investigation.
- Give the employee the opportunity to put their case forward.
- Bear in mind that use of the ‘without prejudice’ privilege may fail. This applies whether it was used to shelter matters put forward at a disciplinary or grievance hearing, so that they could not subsequently be used as evidence of some serious impropriety, such as victimisation or discrimination, or to shelter negotiations over the grounds for a dismissal. In a case involving the latter, the Court of Appeal found that there had been clear potential for litigation if the negotiations undertaken six months previously had failed, so the matters the employer was trying to protect should remain in the legal domain.
- If the employee raises any issues in defence that need further investigation, adjourn the hearing. This may involve interviewing new witnesses, re-interviewing existing witnesses or checking documents.
- Make sure there is a record of the proceedings, in case you need to refer to it in making your decision – and in case you need to produce it as evidence for an Employment Tribunal. Have someone (other than the employee’s witness) taking notes.
- Adjourn the hearing to consider your decision. Do not make an instant decision, otherwise it might look as though you had already made up your mind.
- Consider mitigating circumstances – the employee’s previous disciplinary record, long service, etc – before reaching a decision.
- Whatever the disciplinary action to be taken, notify the employee in writing immediately (and ask for an acknowledgement of receipt), setting out:
- the nature of the misconduct or performance issue
- any period of time given for improvement and the improvement expected
- the disciplinary penalty and, where appropriate, how long it will last
- the likely consequences of further misconduct or poor performance
- the timescale for lodging an appeal and how it should be made
- the reasons for any disciplinary action you decide to take
- Tell the employee they have an opportunity to appeal against the decision.
- Set up an appeal meeting if requested to do so. Ideally, the appeal should be dealt with by a more senior manager than attended the first meeting. The employee has the right to be accompanied at the appeal meeting.
10. If we have to sack someone for gross misconduct, should we give pay in lieu of notice?
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.
11. If an employee who has been sacked for gross misconduct tries to sue us, what will they be suing for?
The employee may have the following claims:
- Unfair dismissal, assuming that they have been with you for more than 2 years. If they have not been with you for the required period, but think they can prove that the sacking was due to discrimination or any of the ‘inadmissible’ reasons for which 2 years’ service is not required, they can still sue you for discrimination and/or unfair dismissal.
- Wrongful dismissal, claiming for pay they would have received if they had been allowed to work out their notice. This is pursued in an Employment Tribunal or civil courts, regardless of their length of service. Alternatively, if they are highly paid they may sue you for wrongful dismissal in the civil courts, as the Employment Tribunal is only able to award damages of up to £25,000 for breach of contract / wrongful dismissal claims.
12. Can we be sued by a fixed term contract employee whom we have sacked for gross misconduct?
Yes. Depending on the circumstances, they may be able to sue you for:
- Unfair dismissal, assuming that they have been with you for more than two years. Otherwise they cannot, unless they think they can prove that the sacking was due to discrimination or any of the ‘inadmissible’ reasons where a minimum period of employment is not required, in which case they can still sue for unfair dismissal or discrimination.
- Breach of the fixed term contract (ie for damages representing their loss during the remainder of the contract term or in relation to any shorter notice period referred to in the contract).
13. How long will it take for a case to come to the Employment Tribunal?
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.
14. How much is it likely to cost us to defend such a case?
That depends on the complexity of the case.
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.
15. Would we do better just to pay the offending employee to go away?
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 case ‘as a point of principle’ will cost you 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.
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.
16. What is Acas early conciliation and a COT3 agreement?
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.
17. If we are sued, what sort of evidence do we need to be able to present to defend our case?
You would need to be able to present:
- All relevant documentary evidence: for example, the contract of employment and any variations to this; staff handbook and other relevant policies; documents relating to or recording the misconduct itself; letters you have written to the employee; copies of written warnings; notes on any incriminating evidence; documents relied upon during the disciplinary process; notes on any investigatory or disciplinary hearings; witness statements taken during the investigation; any documents relating to any appeal.
- Witnesses: depending on the nature of the complaint you may need to call people who saw what happened; the person who carried out the investigation; the person who chaired the disciplinary hearing and took the decision to dismiss; the person who chaired the appeal hearing.
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