Our clients often call on us to assist them in dealing with people issues in their workplace. In this post, we discuss the things people do at work that they shouldn’t, and how you should deal with them.

What constitutes gross misconduct in the workplace?

According to Law Donut, gross misconduct is defined as the “behaviour, on the part of an employee, which is so bad that it destroys the employer/employee relationship, and merits instant dismissal without notice or pay in lieu of notice”. Dismissal without a notice is commonly referred to as ‘summary dismissal’.

A few examples of gross misconduct could be:

  • Theft or fraud
  • Physical violence or bullying
  • Damage to property
  • Serious misuse of an organisation’s name or property
  • Deliberately accessing internet sites that contain pornographic or other offensive material
  • Setup of a competing business
  • Misuse of confidential information
  • Serious insubordination
  • Discrimination or harassment
  • Bringing the organisation into serious disrepute
  • Offering or accepting bribes
  • A serious breach of health & safety regulations
  • A serious breach of confidence
  • Causing loss, damage, or injury through serious negligence
  • Serious incapability at work due to alcohol or illegal drug use

This list is not exhaustive, and you should also include any other offences that you would sanction with summary dismissal in your employee handbook.

You should make sure that you clearly identify what you deem to be gross misconduct in advance of any hearings. A good place to do this is contracts of employment and the employee handbooks.

Make sure that you also have a written procedure, which all staff can access, for handling allegations.

What should you do if gross misconduct takes place?

As gross misconduct warrants immediate dismissal, you will need to ensure you act fairly and follow a number of steps:

  • Identify the potential reason for dismissal
  • Demonstrate that you are acting reasonably in relying upon that reason
  • Decide whether to suspend the employee (on full pay). Good reasons to do so are if they could pose a risk to your business, if they could be a risk to themselves or others or if the person could influence any witnesses by staying in work
  • Undertake a reasonable investigation (the scope of which will depend on the nature of the allegations)
  • Don’t rush the process – you may want to deal with the matter quickly, but serious thought and consideration need to be given to how you will proceed
  • Check your policies – whatever process you follow will need to comply with both your policies and with the ACAS Code of Practice
  • If your findings support the allegations, you should invite the employee to a disciplinary hearing. Do this in writing. In the letter, you must give details of the offending behaviour. You should mention that they have the right to a colleague or trade union representative accompanying them
  • All hearings should include a chairperson and a person to take notes—both of whom should be impartial. By having somebody to take notes, you will be adding to your records of the process
  • Ensure that different senior managers should conduct the investigation, hearing and appeal
  • Provide copies of the information to the employee in advance of the hearing, including witness statements, documentary evidence and minutes from meetings
  • Give the employee the right to appeal
  • Keep records of everything

After the hearing, what should you do next?

Adjourn the hearing before you decide on the outcome. It is important that you think about the mitigating factors.

You must then inform your employee, in writing, of the hearing’s outcome. You should set out:

  • The nature of the gross misconduct.
  • Any given time for them to improve and what improvement you expect.
  • The disciplinary penalty and, if needed, the length of the penalty.
  • The consequences of further misconduct or poor performance.
  • The timescale for them to lodge an appeal and how they should make it.
  • Your reasons for the action taken.

The penalty for gross misconduct is often a final written warning, demotion, or dismissal. If you conclude that you must dismiss them, you should make sure that you meet these criteria:

  • The decision was one that a reasonable employer would make
  • It was a fair and reasonable decision given the circumstances of the matter
  • The offence warranted immediate dismissal

Is there anything you can do to prevent and detect gross misconduct?

In my experience, this isn’t something employers can necessarily anticipate or plan for, but there are steps that you can take as an employer:

  • Lay down ground rules in terms of what you expect in your employee contracts
  • Implement clear policies and procedures and make sure your employees are aware of them
  • Be intuitive and aware of what’s going on in your business– be in touch with the mood and behaviour of your teams and address issues early. It’s a lot easier to have a conversation with an employee early on
  • Be clear about your values and behaviours and ensure that you model them as an employer

If you are affected by the issues touched on in this post and need further support, get in touch!

T: 0151 728 7717

E: anna@liverpoolhr.co.uk

Twitter: @LiverpoolHR