Clarifying Gross Misconduct Actions

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Gross misconduct is a term that is referred to in employment when someone’s conduct is so serious, dangerous or negligent that the employer feels they cannot continue to employ the individual. Often the consequence of such serious misconduct, in worst case scenario, is summary dismissal i.e. dismissal without notice.

A disciplinary policy and procedure is a must and most businesses will have one in place. However, is your policy clear as to which actions constitute misconduct and which constitute gross misconduct? How can your employees be expected to know whether you are going to treat, for e.g. persistent lateness, as misconduct or gross misconduct?

Apart from the obvious serious acts like theft, lying, breaches of policy, being negligent in duties, etc. there are some other actions that will depend on the employer and their attitude to what they feel is Gross Misconduct. Continuing with the example of persistent lateness some businesses may tolerate this more so than others and their policy should reflect this. A one size disciplinary policy does not fit all organisations.

The disciplinary policy should aim to have some examples covering a range of acts and scenarios to demonstrate what they would treat as Gross Misconduct and the potential sanctions they could impose, including dismissal. Dismissal could be part of a suite of sanctions and not the only one.

What an employer cannot do is dismiss an employee for an action they have described as potential misconduct in their disciplinary policy where the sanction is a written warning. Employment Tribunals have often found against the employer where the employer has added up the misconduct acts to dismiss someone for gross misconduct.

It’s always going to be difficult to mention every situation which is potentially gross misconduct so explain that the list is intended as a guide and not an exhaustive list.

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