Most business owners and managers have some understanding of disciplinary procedures and principles and understand gross misconduct offences to be those which are serious enough to warrant dismissal without needing previous warnings to be active.
But there are some common misconceptions about gross misconduct, and some key points to consider.
What counts as gross misconduct?
For an offence to be gross misconduct it basically has to be so serious that the employment relationship is no longer viable. These types of offences would usually be things like violence, theft, dishonesty, offensive or discriminatory behaviour, serious health and safety breaches. Most employers have a list in their disciplinary procedure, and it’s sensible to do this, but also to ensure it’s clear that the list is not exhaustive, and an offence not specifically listed can still be gross misconduct is if it sufficiently serious.
Regardless of whether something is on a list of possible gross misconduct offences, to be a fair dismissal, you would need to be able to demonstrate that dismissal was a decision that a reasonable employer would have made, that you followed a fair procedure, and were reasonable to believe your employee was guilty of the offence.
Burden of proof
It’s important to remember that the level of proof required to make a dismissal fair is not the same as is required in the context of a criminal prosecution, even if the offence being considered could be a criminal one, such as theft or assault. In an employment context it’s more about balance of probability, and if after a sufficient investigation you are reasonable in believing the employee to be guilty, you don’t need to be able to absolutely prove it.
What about consistency?
Consistency is important, and if you dismiss someone for a gross misconduct offence that you have previously issued a written warning for, you may find yourself being challenged. You will be expected to have considered whether other sanctions are appropriate, and if a lesser sanction was issued previously, that would be taken into account. On a practical note, regardless of what a tribunal would say, you are obviously more likely to be challenged if you dismiss for an offence you have not dismissed for previously.
However you are also entitled and indeed expected to take into account any mitigating circumstances as well as the employee’s overall record, and if there are differences here which mean a dismissal is warranted in one circumstance but not in another, then it wouldn’t be inconsistent to issue a different penalty.
What does “summary dismissal” actually mean?
People often talk about instant dismissal in situations of gross misconduct, but actually that’s a bit misleading, as you can’t actually dismiss someone instantly even if you literally caught them with their hand in the till. Even with overwhelming evidence of a gross misconduct offence the principles of a fair and reasonable disciplinary procedure still apply, and employees are entitled to be notified of a disciplinary hearing, given details of allegations, given the right to be accompanied to that hearing, and to appeal a decision. Summary dismissal actually just means dismissal without any notice period, the idea being that if the offence is serious enough to mean the employment can no longer continue, the employer should not be held to a notice period.
Key points to remember
- Make sure examples of gross misconduct are listed in your disciplinary policy and that it’s clear that these are only examples.
- Make sure you follow a fair and legal procedure to the letter even if it seems blatantly obvious the employee is guilty of a very serious offence. It could still be unfair dismissal without a proper procedure (although compensation may be reduced if it was clear the employee would have been dismissed anyway).
- It’s all about reasonable belief and reasonable response rather than absolute proof, so as long as you investigate appropriately thoroughly and genuinely think the employee is guilty of the office, you don’t need to be able to absolutely prove it.
- Take previous record and mitigating circumstances into account, and look at other sanctions before deciding that gross misconduct dismissal is the only viable option.
If you have a serious disciplinary issue you need some advice with, do get in touch.