What is Gross Misconduct at Work?

First published on Thursday, June 4, 2020

Last updated on Tuesday, December 3, 2024

Imagine this: an employee at your company is caught in a serious breach of conduct. Perhaps they were involved in theft, harassment, or another severe breach of your company policy.

As a business owner, you’re faced with the daunting task of addressing what is commonly known as “gross misconduct”. But what exactly constitutes it, and how should it be handled to avoid the many potential legal pitfalls?

Mishandling these situations can lead to significant consequences for your business. Unfair dismissal claims can be both costly and damaging to your reputation. So, it’s best to get advice from employment law experts.

In this article, we’ll explore what gross misconduct is, provide examples, and guide you through the responsibilities and processes involved in managing these serious workplace issues.

What exactly is “gross misconduct”?

Gross misconduct refers to actions or behaviours by an employee that are so severe in nature, they justify dismissal without notice or pay in lieu of notice. These actions typically undermine the trust and confidence essential to the employment relationship, making it impossible for the employer to continue with the contract of employment.

Gross misconduct can encompass a wide range of behaviours, including but not limited to:

Theft or fraud
Physical violence or threats
Serious breaches of health and safety regulations
Harassment or discrimination
Intoxication at work due to alcohol or drugs
Gross negligence or insubordination

Knowing exactly what constitutes as gross misconduct is crucial for employers to ensure they handle such situations appropriately and lawfully.

What are some examples of gross misconduct?

Gross misconduct can take many forms, so here’s a few hypothetical scenarios to illustrate what it could look like in your workplace:

Embezzlement

Imagine an employee, trusted with company finances is found to have been embezzling funds over several months. This discovery not only shocks management, but also undermines the trust of the entire team, leading to dismissal and potential legal action

Physical assault

Consider a situation where an employee, during a heated argument, physically assaults a colleague. This act of violence creates a ripple of fear and insecurity among your other employees, necessitating swift and decisive action to ensure safety in your workplace

Derogatory comments

Finally, imagine a situation where an employee has repeatedly made derogatory comments towards a co-worker based on their race, sex, or sexuality. This behaviour not only violates company policy, but also creates a hostile work environment, prompting you to take immediate steps

These are just some common situations that may constitute gross misconduct, but it’s important to recognise the signs to make the best judgement on a case-by-case basis.

What are my responsibilities as an employer when dealing with gross misconduct?

When dealing with gross misconduct, you as a business owner have a duty to handle the situation fairly and in accordance with the law. This includes following a fair disciplinary process and ensuring that any dismissal is reasonable.

First of all, you must ensure you conduct a thorough investigation into any alleged misconduct. Gather evidence, interview witnesses, and always ensure the employee has been given a chance to explain their side of the story.

According to the Employment Rights Act 1996, employers must follow fair procedure for dismissing an employee for gross misconduct. This includes providing the employee with a written statement of the allegations, holding a disciplinary hearing, and allowing the employee to be accompanied by a colleague or trade union representative.

Before going ahead with dismissal, employers should evaluate whether there are any alternative options, such as a final written warning or demotion. Dismissal should be a last resort, used only when the misconduct is so severe that it destroys the employment relationship.

It’s crucial to document everything throughout this process. This includes notes from meetings, copies of correspondence, and records of the investigation. Proper documentation can help defend against any claims of unfair dismissal.

Employers must ensure that their actions comply with relevant legislation as well as guidelines from ACAS. Failure to follow these guidelines can result in legal challenges and potential compensation claims.

What is the disciplinary process I should follow when addressing gross misconduct?

Handling gross misconduct requires a structured approach, so that you can ensure fairness and compliance with employment law. Here are the key steps to follow:

Investigate thoroughly to gather all facts and evidence.
Notify the employee in writing about the allegations and the upcoming disciplinary hearing
Hold a disciplinary hearing where the employee can present their case, accompanied by a colleague or union representative.
After the hearing, decide on the appropriate action, which could range from a warning to dismissal.
Provide the employee the ability to appeal the decision if they feel it was unfair.

For more reading on this topic, we have articles on what are disciplinaries, how to conduct effective disciplinary proceedings, and the best way to conduct an investigation.

Preventing gross misconduct in the workplace

Preventing gross misconduct starts with creating a positive and transparent workplace culture. One of the most effective strategies is to establish and communicate clear policies regarding what constitutes acceptable behaviour and the consequences of gross misconduct.

It’s essential all your employees understand these policies from the outset. If you’re unsure of what should be included in your policies and handbooks, a great start would be to use a HR document library with ready-to-use, compliant templates.

Regular training is also crucial and can be easily and compliantly shared with employees via an online learning management system. By educating employees and managers on workplace conduct, ethics, and the importance of adhering to your company policies, many issues can be prevented before they ever crop up.

Afterwards, it’s important to foster an environment where employees feel comfortable reporting concerns or misconduct without fear of retaliation, so they can help you weed out and address issues early.

Consistent enforcement of policies is another key consideration. Applying policies fairly across all levels of the business can help prevent confusion and potential misconduct.

Finally, providing support in the way of employee assistance programmes (EAPs) can help employees deal with personal issues that might lead to misconduct, or help those who have been affected by the behaviour of another employee.

What are the legal risks of mishandling gross misconduct?

Mishandling claims of gross misconduct can have serious legal and financial repercussions for employers. If the disciplinary process is not conducted fairly and in accordance with the law, you may face claims of unfair dismissal.

According to the Employment Rights Act 1996:

Employees with a permanent contract are protected from unfair dismissal from day one
Employees with at least two years of continuous service are protected from unfair dismissal

This means that they can challenge it if they feel it was unjust. That being said, this may soon change in the Employment Rights Bill; giving employees protections from day-one.

Failure to adhere to the ACAS Code of Practice on Disciplinary and Grievances can result in a further uplift of up to 25% in compensation awarded by tribunals.

For context, the average award for unfair dismissal claims in the UK was £13,541 in 2022, but this can vary widely depending on circumstances.

It’s important to follow the steps in this article to best position your business for success.