What is Gross Misconduct in the UK?

Employing staff is not always a smooth process. Whilst you may have employees who do an excellent job and always behave professionally, there may be times when your employees do not. Your employee’s conduct might be so severe that it amounts to gross misconduct. When faced with a situation that might be gross misconduct, you need to be confident about distinguishing what gross misconduct is and how you can deal with it as an employer. If you cannot or do not deal with it appropriately, you could be in a position where similar behaviour happens again. You could also find that your employee takes you to a tribunal costing your business time and money. To help, this article will explain gross misconduct in the UK.

What Does Gross Misconduct Mean?

There is no exact legal definition of what gross misconduct means. However, gross misconduct is when your employee carries out something severe or where the effects of what they have done are serious. Accordingly, the result of your employee’s behaviour destroys the relationship between you and your employee. 

Employee conduct that could be ‘gross misconduct’ could include:

• theft;
• dishonest behaviour;
• fraud;
• physical violence;
• malicious damage;
• gross negligence, which is acting carelessly with a disregard for others, such as for their property;
• serious insubordination, which is where your employees do not follow instructions;
• intoxication, although where this is due to addiction, it may not constitute gross misconduct;
• indecent behaviour;
• sabotage;
• serious breaches of safety and health;
• offensive behaviour such as discrimination, harassment, abuse and bullying;
• bribery;
• downloading pornography;
• misuse of software;
• misuse of confidential information; and
• setting up a business that creates competition.

What Can an Employer Do About Gross Misconduct?

Dismissal

If your employee carries out gross misconduct, you can dismiss them immediately or undergo a summary dismissal. This means that your employee is required to leave the workplace immediately, and you are not required to give them:

• the notice you would typically give your employee as required under the employment contract; or
• any notice pay.

However, when dismissing your employee, you must follow a fair procedure. You should first examine what has allegedly happened and allow your employee to give their side of the story.

You do not have to pay your employee notice pay when dismissing them for gross misconduct. However, you must ensure they receive any payments you owe them, such as salary and expenses. You must also ensure that you pay your employee any holiday leave they have not used. There may be other benefits you need to give them, but their employment contract will state where this is not the case.

Other Penalties

As an alternative to dismissal, you can suspend your employee on full pay whilst investigating this issue. This is a good option where the alleged misconduct could damage your business. However, you should only suspend your employee for as long as necessary. 

You could also send the relevant employee a written or verbal warning or demote them. If taking disciplinary action against gross misconduct, you should follow your company policy and the ACAS code of practice for this. Otherwise, where you do end up dismissing, this could constitute an unfair dismissal.

You should also ensure consistency in your approaches towards employees and gross misconduct. Therefore, where one employee carries out a specific action that constitutes gross misconduct, your action towards them should be how you would respond if another employee did the same unless you can justify otherwise. Otherwise, you could be acting unfairly and discriminating based on protected characteristics.

Gross Misconduct Policy

As an employer, it is good practice to have a policy about gross misconduct in place. This could be placed within your employee’s employment contract or, for example, in a staff handbook. Here, you can clarify your rules and give examples of what may be considered gross misconduct. While some acts like physical violence and theft are reasonably obvious as gross misconduct, others are not so obvious. As such, it is essential to point out that any examples are not exhaustive. 

Having a policy regarding gross misconduct can help prevent your employees from carrying out gross misconduct. It is also helpful in situations where an employee decides to take you to an employment tribunal for unfair dismissal. By having a robust gross misconduct policy in place, you can demonstrate that the employee was aware that their actions fell under your company’s policy on valid reasons for dismissal.

Key Takeaways

Gross misconduct is a very serious offence in employment. It is so severe that it can justify immediately dismissing your employee without notice following an investigation and hearing. You should deal with these situations appropriately. This means you must conduct a fair procedure when investigating the allegation. It is also good practice to ensure that your employees know what might constitute gross misconduct in your business and how you may deal with it when it takes place.

If you need help understanding gross misconduct, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.

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