What is gross misconduct ?
Gross misconduct occurs when an employee behaves in a way which can be classified as fundamentally destroying the employment relationship. This is largely a common sense issue as to what sort of behavior would so that, but reference should also be made to any written contract of employment which will be likely to give examples of what might constitute gross misconduct, typically including :-
- theft or fraud;
- malicious damage;
- serious incapability through alcohol or illegal drugs;
- actions which endanger employees’ safety;
- falsification or unauthorised removal of company records or property;
- a serious act of insubordination
Every company might adopt its own list of behaviour which constitutes gross misconduct. It is advisable that the employer makes clear what amounts to gross misconduct at the start of employment. This can either be done by writing it into an employment contract with every individual employee or by making it generally known to the staff (for example by putting disciplinary procedure in the staff handbook).
If an act of gross misconduct occurs the employer can dismiss the employee without a notice or any payment in lieu (instead) of a notice. The act of gross misconduct can be a one off occurrence and does not have to be repeated in order for the employer to dismiss an employee. The employer will have to be careful to have :-
- Investigated the allegations of gross misconduct
- Complied with employment law procedure and it’s own procedures in the contract of employment
In many cases employers get it right in terms of a common sense decision as to what would amount to gross misconduct, but miss out or make mistakes with fair procedures. A finding of unfair dismissal is possible for procedural unfairness just as much as the underlying reason to dismiss and many employers get caught out by this, particularly if the employee has behaved in a shocking way and the employer simply reacts on the spot.
What claims can a dismissed employee have?
If an employee is dismissed on a basis of a gross misconduct he or she might be able to bring a claim to the Employment Tribunal for the following, and in many cases, claims are overlapping :-
1. Unfair dismissal
To bring the claim an employee must be employed by the employer who dismissed him for gross misconduct for at least one year (in most circumstances).
2. Wrongful dismissal
The claim can be brought for a breach of contract. The length of employment is irrelevant for the wrongful dismissal claim. The employee can chose to bring a claim in the civil court because damages for a breach of contract or wrongful dismissal claim are limited to £25,000 in the Employment Tribunal.
3. Discrimination (on grounds of race, sex, religious believes or disability)
The length of employment is irrelevant for the discrimination claim. i.e there is no minimum qualifying period.
More content about gross misconduct on another Darlingtons website.
For dismissals generally this page on our main site may also be useful.