Being accused of gross misconduct is a very serious situation to navigate. This tends to involve serious indiscretions which will be considered a fundamental breach of your employment contract.
In many cases, being found to have engaged in gross misconduct can lead to immediate dismissal. If you’re facing this type of accusation, it’s vital to understand how to defend yourself, your legal rights, and how the disciplinary process should be structured.
Our guide will help you understand what gross misconduct is, what your employer must do to investigate allegations in the workplace, and how to defend yourself during the process.
What’s Gross Misconduct?
In every workplace, there are rules and guidelines that employees are expected to follow. Breaking these rules can lead to misconduct or even gross misconduct, depending on the severity of the infraction.
Misconduct, which is less severe, is any action that goes against company policy or outlined expectations for staff behavior. However, if these actions or behaviors are significantly harmful and can negatively affect the work environment or compromise the relationship between employer and employee, they can be considered gross misconduct.
Gross misconduct can have serious consequences. It’s viewed as unprofessional and can severely harm your career. If an investigation proves that gross misconduct occurred, it may result in job termination. Moreover, repeated instances of misconduct, despite warnings, can escalate to gross misconduct.
Examples of Gross Misconduct
Gross misconduct encompasses a wide range of scenarios with no single definition. For this reason, employers should make workplace rules clear.
Gross misconduct refers to serious workplace violations, such as:-
- Dishonesty: Any dishonest actions, including financial misconduct or violation of company rules.
- Employee Theft: Stealing from the workplace, whether it’s money, equipment, data or even time, is considered gross misconduct.
- Sexual Harassment: Any incident involving sexual harassment will lead to a serious investigation.
- Breach of Confidentiality: Leaking sensitive data or information.
- Deliberate Damage or Vandalism: Damaging or vandalising company property is gross misconduct.
- Bullying in the Workplace: Whether in person, through social media or email, is treated seriously and swiftly.
- Physical Assault: Physical fights or assaults between staff members, regardless of when or where they occur. This includes incidents outside work hours or premises.
- Substance Misuse: Violating the company’s drug and alcohol policy is seen as gross misconduct.
- Safety Violations: Breaking safety regulations, particularly when it puts others at risk, is gross misconduct.
- Gross Negligence: Serious carelessness in the workplace, whether due to misconduct or poor performance.
- Serious Insubordination: Disrespectful behavior, refusal to do tasks, or harassing colleagues.
- Discrimination or Racism: Any form of discrimination or racism is taken very seriously.
- Damaging the Company’s Reputation: Actions that tarnish the company’s name or negatively affect its business is considered gross misconduct.
Misconduct Vs Serious Misconduct V’s Gross Misconduct?
Workplace rules exist to maintain order and professionalism in the work environment. When these rules are broken, the behavior is considered misconduct.
There are generally three types of workplace misconduct: misconduct, serious misconduct, and gross misconduct.
Whether you’re an employee trying to understand where your actions might fall, or an employer attempting to navigate your response to an employee’s behavior, it’s important to understand these distinctions.
There aren’t any legally defined rules for these types of misconduct in UK employment law. The interpretation depends on the employer’s discretion. However, it’s crucial for the disciplinary action taken regarding them to be considered reasonable in the circumstances. If an employer acts unreasonably and fails to follow a fair investigation and disciplinary process, it can leave them open to legal action.
Misconduct
Ordinary misconduct when minor workplace rules are broken. These might include defined contract terms or implied terms, which will involve boundaries around conduct which can be reasonably expected in the worplace, but may not be written in black and white.
Some examples of general misconduct could include:-
- Poor performance such as failure to meet deadlines.
- Lying about an illness to get sick days.
- Taking unauthorised leave.
- Poor timekeeping.
- Excessive time off.
Although such the above will likely attract some kind of disciplinary action, ordinary misconduct is not normally a sackable offence. It may, however, mean a verbal or written warning.
Serious Misconduct
The next level of misconduct in the workplace is serious misconduct. This means a disciplinary will likely be required although the result is not always dismissal. Employees should understand the seriousness of breaking serious rules.
Some examples of serious misconduct could include:-
- Errors resulting in financial loss to the business.
- The business’s reputation is adversely affected by the actions of an employee.
- Persistent poor performance.
- Complaints are made against you.
- Poor work ethic despite constant warnings.
At times, ordinary misconduct can escalate to serious misconduct, and likewise, serious misconduct can escalate to gross misconduct.
The classification of the misconduct, whether ordinary, serious, or gross, depends on the severity of the behavior and its impact on the business.
Gross Misconduct Procedure
The disciplinary procedure to deal with gross misconduct must to be taken seriously by all parties involved.
When an employee is accused of gross misconduct, there should be a fair and thorough process to investigate the situation, and determine what the outcome of the gross misconduct allegation will be.
Suspension
Once misconduct is identified, it may be necessary to suspend the employee. While this isn’t always the case, with gross misconduct, it’s often a part of a fair disciplinary process to allow an investigation to take place.
In some situations, an employee might need to be suspended from work while an investigation takes place, especially when dealing with accusations of gross misconduct. If an employee is suspended, it should be on full pay.
Disciplinary Hearing
The next step is for the employer and any other relevant individuals to investigate the claims. The employee should then receive notice that a disciplinary hearing will be held. A minimum of 48 hours notice must be provided.
They should be invited to bring along a support person. They should be given adequate time to compile their evidence.
The hearing must be conducted formally and fairly. All sides should be able to put their case forward with nothing left unsaid. The accused should have been made aware of the evidence against them before the meeting.
Dismissal Due to Gross Misconduct
Dismissal is a probable outcome if an employee is found to have engaged in gross misconduct. As long as the employer has pursued a proper investigation and disciplinary process then the dismissal will be fair.
The employer has the right to dismiss the employee with immediate effect for gross misconduct, which means they are not obligated to pay contracted notice. However, employees do have the right to be paid for accrued holidays as well as all hours worked before dismissal.
If an employer fails to follow a fair disciplinary procedure, or unfairly withholds notice pay then they can face claims of unfair dismissal. This may lead to them being ordered to pay damages, or give the emploee their job back.
See Also: How to avoid dismissal for gross misconduct.
Right to Appeal
Employees have the right to appeal a decision made to dismiss them. It may be that they weren’t given a fair hearing or were wrongly accused.
In either situation, you can write to your employer making it clear you wish to appeal their decision. You must be clear with your reasons for appealing and add any new evidence if applicable.
Grounds to Appeal Dismissal Include:
- The investigation into your conduct was not carried out properly.
- Person who conducted the investigation held a bias against you.
- You have new evidence proving your innocence or mitigating the conduct.
See Also: ACAS guidelines on appealing a disciplinary.
Gross Misconduct & UK Employment Law
If you’ve been accused of gross misconduct, it’s important to understand which aspects of UK employment law protect you during the disciplinary process.
There are 2 key legal obligations that make a fair and thorough process vital regardless of how clear cut the situation appears:
- Employment Rights Act 1996: This Act enshrines in law right to a fair dismissal process. Section 96 of the act requires that the employer be able to prove dismissal for the misconduct was a reasonable response in the circumstances. A failure to do so can result in a finding of unfair dismissal. Source: ERA 1996 s98
- ACAS Code of Practice on Disciplinary and Grievance Procedures: While not a law itself, the code sets out principles for handling disciplinary procedures in the workplace. Failing to follow it can result in increased compensation for the employee of up to 25% if they win their tribunal claim. Source: ACAS Code of Practice.
What Happens After Being Dismissed for Gross Misconduct?
Employers must ensure they respect statutory employment rights when dismissing employees for gross misconduct.
Employees can be dismissed with immediate effect if found to have engaged in gross misconduct. In this situation, there is no obligation to pay contractual notice pay. However, employees must be paid any outstanding expenses, holiday pay entitlements, and be paid for all hours worked before they were dismissed.
Employment References
Relations between the employee and their employer will likely be considerably fractured after dismissal. This means an ex employee may feel a little awkward if needing to ask for a reference for future employment, and concerned about a getting a bad reference in future.
In a detailed reference, gross misconduct may be mentioned. However, a basic reference, which includes only employment dates and company name, won’t include such details. Gross misconduct might also appear on a DBS check, but only if it resulted in police charges.
If you are worried about getting a bad reference, discuss it with your ex employer or HR. They may agree to only provide a basic reference. It’s only a question, and it might save you a lot of worry as you seek to put your dismissal behind you.
Claiming Unfair Dismissal
Claiming unfair dismissal is a route that can be pursued if you feel strongly you have been treated unfairly.
False accusations at work that lead to a person being sacked can have a huge impact on their life. There will be the worry of financial hardship, and finding future employment with a false accusation over your head. It can also have a knock on effect on personal relationships and adversely affect mental well being.
When you feel you have a strong case and an appeal is unsuccessful, you can take your employer to a tribunal. This initially involves approaching ACAS who will pursue early conciliation on your behalf. You may also want to obtain legal advice of your own and look at raising a tribunal claim if early conciliation fails.
