How sure do you have to be to dismiss for gross misconduct?

Gross misconduct is defined as behaviour from an employee which is so considered to be so bad that it destroys the relationship between employee and employer. Employers must be aware of the law before heading into this territory – read our FAQs relating to gross misconduct for employers.

Where an employee has more than two years’ service, they have a right not to be unfairly dismissed – there are also certain circumstances were a dismissal is deemed automatically unfair, such as dismissals for reasons connected to pregnancy or childbirth, health and safety activities and whistleblowing. It is an employer’s responsibility to show that gross misconduct was the reason for dismissal. It should be noted that the employer only needs to have a genuine belief in the employee’s misconduct – that belief does not have to be correct or justified.

1. LAUNCH AN INVESTIGATION

Before any disciplinary hearing is announced, an employer should conduct an investigation. The level and detail of the investigation will depend upon the individual circumstances of the matter. Employers should:

• Make sure that the investigation is carried out by someone impartial, such as a manager from another department.
• In cases involving harassment, bullying or discriminatory treatment, the personnel involved should have ideally been given equal opportunities training.
• Undertake a fair and balanced investigation. Evidence in the employee’s favour should also be sought.
• Maintain confidentiality.
• Arrange an investigatory meeting with the employee in question.
• Request that the investigatory office report on as to what is likely to have happened on the balance of probabilities, and make a recommendation where requested.

When carrying out an investigation, employers should remind themselves of ACAS’s guide on conducting workplace investigations.

2. FAIR OR UNFAIR DISMISSAL?

The question of whether the dismissal is fair or unfair is set out under Section 98(4) of the Employment Rights Act 1996:​

“The determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.”

​Section 98(4) of the Employment Rights Act 1996

An employment tribunal will, therefore, ask the following questions:

• Did the employer undertake a fair investigation in reaching a decision to dismiss?
• Did the employer act reasonably in treating misconduct it identified as sufficient reason for dismissal?

Therefore a dismissal for misconduct will only be fair if the following was noted:

• The employer believed an employee could be guilty of misconduct.
• The employer had reasonable grounds for believing that the employee was guilty of that misconduct.
• At the time it held that belief, it carried out as much investigation as was reasonable.

3. REFER TO THE ACAS CODE

​Pursuant to the ACAS Code, before dismissing for misconduct, an employer should:

• Investigate the issues.
• Inform the employee of the issues in writing.
• Conduct a disciplinary hearing or meeting with the employee.
• Inform the employee of the decision in writing.
• Provide the employee with a right of appeal.

Employers should be aware that failure to comply with the ACAS Code may result in an employment tribunal increasing the compensatory award by up to 25%.

When dismissing for gross misconduct, employers should read or refresh their minds on ACAS’s guide on conducting workplace investigations.

MORE INFORMATION 

For specialist legal employment advice on gross misconduct, Pinney Talfourd solicitors in Essex and London are here to advise and assist. We have an experienced and dedicated team of employment lawyers based in five offices across the county.

We offer late night and Saturday appointments, and our free initial telephone consultation allows you to explain the situation with an expert lawyer and discuss the best steps to minimise stress and delays. You can book your free initial employment consultation using our online booking form or by calling your local office.

VISIT OUT EMPLOYMENT FOR BUSINESSES HOMEPAGE

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.​