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When is misconduct gross misconduct?


Firing an employee can be one of the toughest business decisions you have to make, so you do not want to make it worse by getting it wrong and opening yourself up to a tribunal claim. With many employers unsure of the procedures to be followed when effecting a fair dismissal, Nick Hine from Thomas Eggar offers some advice.

Mandatory disciplinary procedures
From 1 October 2004, the legal landscape is set to change again with new regulations requiring employers to follow mandatory disciplinary procedures. Any dismissal not complying with these procedures is likely to be automatically deemed unfair, and tribunal compensation and awards may be increased or reduced to take account of a failure to comply with the minimum standards. In other words you cannot afford to ignore them.

The reasons for firing someone can be as varied as your employees themselves, but there are several issues that seem to raise their head time and again in the workplace. Some fall under the category of general misconduct, while others may be classed as gross misconduct which can lead to summary dismissal, that is without notice or payment in lieu. You need to ensure you treat the alleged conduct appropriately.

General misconduct
General misconduct tends to cover minor misdemeanours, such as being late for work or using the company telephone for personal calls. Behaviour like this would not warrant dismissal for a first offence, but may lead to a verbal or written warning it continues following a disciplinary hearing. Continued misconduct of this nature can result in dismissal, subject to the proper procedures being followed.

Gross misconduct
Gross misconduct, as the name suggests, is much more serious. This can take many forms, ranging from offences which jeopardise the functioning of your business, or the safety and well being of your staff. The classic example is theft.

As an employer, one of the first things you should do is draw up guidelines of what is misconduct and what constitutes gross misconduct. This will give your employees a clear framework, so they know when they have overstepped the mark. This obviously needs to be communicated to your staff. However it is imperative that any guidelines make it clear that the examples are non-exhaustive.

The DTI states that: “When drawing up disciplinary rules, the aim should be to specify clearly and concisely those that are necessary for the efficient and safe performance of work, and for the maintenance of satisfactory relations with the workforce and between the workers and management.”

…it is imperative that any guidelines make it clear that the examples are non-exhaustive

So what exactly is gross misconduct? Ask any employer for examples and the same problems will always be mentioned.

Listed below are the top 10 reasons bosses cite for firing an employee:

  • Criminal damage to work property
  • Being under the influence of drugs or alcohol during work hours
  • Theft or fraud
  • Harassment or discrimination towards other employees, customers or the employer
  • Negligence
  • Repeated absenteeism without due cause
  • Inappropriate use of email, telephones or the Internet (normally in breach of a policy if the company has one)
  • Insubordination
  • Falsifying experience and qualifications or general incompetence
  • Leaking confidential information

If you believe a member of your staff is guilty of one of these offences then you would be justified in instigating disciplinary proceedings and should make it clear that dismissal may be a possible outcome.

However, you must make sure that the correct procedure is followed and that the employee is given every possible chance to explain and defend their actions. No decisions should be taken until a full investigation and disciplinary hearing has been conducted, and the employee has had the opportunity to put forward their case.

One Response

  1. Gross= fundamental
    Nick’e article risks creating the impression that absence is gross misconduct.
    The top ten reasons for dismissal includes a mixture of gross and less serious offences. Gross misconduct implies one isolated incident.
    Persistent absence/absenteeism implies an ongoing situation which moves from tolerated to intolerable. I spend a lot of my time advising clients not to dismiss summarily for things which they think are gross but are not or may be techically gross but they need to keep a sense of perspective. How many of us have our employer’s pens in our pocket /handbag and make personal calls at work?
    How many of us have given advice that some would think negligent? but grossly so ?

    Peter Stanway

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