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Gross Misconduct – Fact or Fiction?

When it comes to gross misconduct it can be difficult for employers to separate fact from fiction. Below we look at three common areas where confusion can arise.

1. If it’s gross misconduct the employee can be dismissed ‘on the spot’

It’s important to be aware that if an employee has two years’ continuity of service, employers should still follow a disciplinary process even if the employee is suspected of gross misconduct.

If an employer doesn’t follow a disciplinary process not only could the dismissal be found to be unfair, but the tribunal could also increase the compensatory award by up to 25% for an unreasonable failure to follow the ACAS Code of Practice on Disciplinary and Grievances.

In general terms, following a disciplinary process will usually involve:

  • Carrying out a reasonable investigation
  • Inviting the employee, in writing, to attend a disciplinary meeting and advising them of their right to be accompanied
  • Holding the disciplinary meeting
  • Following the meeting, giving the employee a written outcome with a right of appeal

When inviting an employee to attend a disciplinary meeting it’s important to set out the allegation(s), warn the employee of the possible outcome of the meeting (e.g. potential dismissal in a gross misconduct case) and include with the invitation copies of the evidence. Remember that the employee should be given an appropriate amount of notice of the disciplinary meeting –  we usually recommend five calendar days as being reasonable.

If an employee has less than two years’ continuity of service, in some cases, it may be possible to dismiss without the need to go through a disciplinary process although it’s very important to seek advice from Kingfisher* prior to taking any action as there are some claims employees can bring from day one of their employment.

2. How the disciplinary allegation is worded doesn’t really matter as what the employee has done is clearly serious

The disciplinary allegations that are used are very important. They need to be clear and supported by evidence from a reasonable investigation. It’s a basic principle of fairness that the employee can understand the allegation(s) they are facing. Furthermore, if allegations are inaccurate or incorrect you may not be able to safely find them proven.

3. If it’s gross misconduct, it’s automatically fair to dismiss

Whilst the term gross misconduct is applied to the most serious types of misconduct which are likely to warrant dismissal, it’s not the case that it’s automatically fair to dismiss an employee who is found to have committed an act of gross misconduct.

It’s important that mitigation relevant to the individual and the circumstances are still considered when deciding on an appropriate sanction as any dismissal must be reasonable.  There may be occasions where the circumstances are such that the dismissal of an employee for a gross misconduct offence could be found to be unfair.

Remember Kingfisher is here to help. You should always contact us for advice before taking any action on a conduct matter, irrespective of the employee’s length of service. We can provide guidance and practical support no matter the complexity level of your situation. From drafting disciplinary invitations and allegations to advising on the safety of a potential dismissal we can help you throughout the process.

*Kingfisher refers to Kingfisher Professional Services Ltd