Dealing with gross misconduct

Gross misconduct is conduct which is severe enough to destroy the relationship between employer and employee and warrants instant dismissal without notice and without pay in lieu of notice.

So what things are considered to be gross misconduct?

A few examples include:

• Theft or fraud
• Physical violence or bullying
• Misuse of confidential information
• Discrimination or harassment
• Causing loss, damage or injury through serious negligence

It’s essential that your Company clearly states what you deem gross misconduct to be. The best place to do this is your employee handbook and contract of employment.

It’s also useful to note which actions the business would sanction with summary dismissal, and to have a written procedure staff can follow for handling allegations.

How should I manage an allegation of gross misconduct?

After an allegation is made, the first step is to decide whether to suspend the accused employee (on full pay).

This is advised if they could pose a risk to your business or other employees, or if the person could influence any potential witnesses.

With any suspension, it should always be made clear that the suspension is not a sanction.

Your next step is to find facts, and collect and store evidence. This can be in the form of emails, witness statements or other relevant documents.

If you find something that supports the allegation, it’s time to invite the employee to a disciplinary hearing.

This should be done in writing, detailing the offending behaviour, and should always mention that they have the right to be accompanied by a colleague or trade union representative.

Hearings should include a chairperson and a person to take notes, both of whom should be impartial. By having somebody to take notes, you’ll be adding to your records of the process.

You must also give the employee access to the evidence you’re relying on in the interest of transparency.

What should you do after the hearing?

Adjourn the hearing before you decide on the outcome. It’s important to consider mitigating factors, such as if the employee is a long-serving member of staff whose record has been clean up to this point.

You must then inform the employee, in writing, of the hearing’s outcome. The letter should include:

• The nature of the gross misconduct and the findings
• Any given time for them to improve and what improvement you expect
• The disciplinary penalty and, if needed, the length of the penalty
• Your reasons for the action taken
• The consequences of further misconduct
• The timescale for them to make an appeal and how they should make it

The penalty for gross misconduct is often a final written warning, demotion or dismissal.

If you decide to dismiss the employee, you must make sure you meet these criteria:

• The decision was one that a reasonable employer would make
• It was a fair and reasonable decision given the circumstances of the matter
• The offence warranted immediate dismissal

Dealing with any kind of misconduct is never an easy process and must be handled not only fairly but impartially and carefully within the confines of employment law. If you’re struggling to handle an incident within your company, or would like some advice, please contact me.

Written by Heidi Skirrow.