A summary dismissal should only be used in a situation so severe that it can bypasses the usual disciplinary procedures every organisation should have in place. These disciplinary procedures usually provide that employees will not be dismissed for a first misconduct offence and will instead receive warnings increasing in severity up to dismissal.

However, an employee accountable for gross misconduct has, through behaviour so serious as to negate the appropriateness of warnings, destroyed the employment relationship and overturned the contract between the employer and himself.

In an event such as that, the actions of the employee may call for a dismissal without notice even at first offence.

What actions are considered to be gross misconduct?

Disciplinary policies should indicate examples of conduct which are deemed as gross misconduct to help employees be aware of conduct which is unacceptable, however this list should not be exhaustive.

Examples of gross misconduct included in the disciplinary procedure will differ from industry to industry and again between company to company, as they depend on the nature of the work being carried out.

Generally, all employers will regard theft, physical violence and/or serious insubordination as gross misconduct.

However, some employers may also consider that a flagrant disregard of health and safety rules warrants summary dismissal, or breaches of confidentiality in a care setting.

Employers should ask themselves whether the act alleged, if substantiated, means that it is not conceivable that the employee’s employment continues.

Does it equal instant dismissal?

Although gross misconduct situations warrant dismissal without notice, this does not mean instant dismissal i.e. immediate dismissal of the employee as soon as you become aware of the allegation.

It should be kept in mind that some forms of conduct can be alarming, but employees should not be dismissed there and then because this could still be considered a procedurally unfair dismissal in the eyes of an employment tribunal.

When informed of an allegation, employers should follow the disciplinary procedure as stated in the employee handbook to ensure procedural effectiveness.

The process employers should follow

The first step generally requires an investigation and as part of that investigation employers should impartially interview witnesses and gather evidence.

In cases where gross misconduct is investigated, it is advisable that the employee is placed on a short period of suspension while you are conducting the fact-finding investigation as it allows you to lead a focused and undisturbed enquiry.

Where this means asking the employee questions as part of the investigation, they should be invited to an investigation meeting.

Where the findings of the investigation lead the employer to believe there is a case to answer, a disciplinary meeting should take place. If the employee’s behaviour goes to the heart of the contract and destroys the working relationship with that employee, then gross misconduct can be established.

Taking all the evidence gathered and, if you establish that the actions of the employee satisfy the gross misconduct definition, you can summarily dismiss them without notice or pay in lieu of notice.