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Ask the expert: Gross misconduct and dismissal procedure


Question: Dismissal

My client wants to get rid of a worker. However, I feel there is only one credible written warning on this persons’ file. There have been a series of verbal warnings throughout this employee’s two year career but the previous HR officer did not follow these through professionally, i.e. kept official notes on scrap pieces of paper in persons’ file. The employee has since broken communication and vehicle policies, is this now gross misconduct and grounds for dismissal?
Gross misconduct is misconduct so serious that it justifies the immediate dismissal of an employee without notice. Your question as to whether the employee breaking particular policies is sufficiently serious to amount to ‘gross misconduct’ is difficult to evaluate on the available information.
What constitutes gross misconduct may vary according to the particular circumstances of the employer and the work the employee is carrying out. Case law indicates that deliberate wrongdoing or gross negligence can amount to gross misconduct. An employers’ position is strengthened where previous warnings have been given but taking into account previous warnings is risky where you have no record of them and/or if they have expired. 
Whilst dismissal for misconduct is a potentially fair reason for dismissal, to establish that a dismissal was fair an employer must be able to demonstrate a number of things. First, that at the time of dismissal they believed the employee to be guilty of misconduct. Second, that at the time of dismissal they had reasonable grounds for believing that the employee was guilty of that misconduct. Third, that when they formed that belief on those grounds, they had carried out as much investigation as was reasonable in the circumstances. A fair process should be followed and the ACAS Code of Practice sets out further information about the steps your client should go through. A failure to follow it can result in an uplift in any subsequent tribunal award. If there are internal disciplinary policies or procedures your client should also factor these in. An employer needs to act reasonably when conducting a disciplinary investigation or hearing and when deciding whether dismissal for that reason is justified.
By taking these factors into account and having a paper trail to help demonstrate the process your client has followed, if they then dismiss the employee (or take disciplinary action short of dismissal such as a written warning), they would be better positioned to defend against any subsequent tribunal claim. 

Adam Partington, Solicitor, Speechly Bircham LLP

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