Gross Misconduct – what it is and how to handle itMonday, June 13th, 2011
Much misunderstanding appears to exist about the definition of gross misconduct, largely because many employers place a subjective rather than a legal interpretation upon it. If they are particularly annoyed about the behaviour of an employee, they treat the incident as one of gross misconduct. Even worse, much worse, they sack the person “on the spot”, that is without warning or compensation. Our courses make sure that delegates do not make mistakes like this – the cost of the course then looks trivial when compared with the thousands of pounds awarded against less well informed managers.
First, therefore, let us look at what we are talking about. Gross misconduct is conduct that strikes at the root of the employment relationship and that any reasonable person would consider makes continuation of the relationship between employer and the employee untenable. Not clear enough? Well, that is part of the problem, therefore you need to give examples to explain to both your managers and the people they manage. These examples might well include assault on another employee, breach of health and safety regulations that is likely to endanger other people, wilful damage to company property, sexual misconduct such as downloading pornographic material, harassment and bullying, serious breach of confidentiality, falsification of records or expense claims, gross insubordination. Discuss with colleagues what are the real no-no’s of behaviour, actions that are simply intolerable and, if you run out of ideas, have a look through the rulebooks of other organisations. Having established your list, publish it to every employee at every level, perhaps by including it in your employee handbook, in your discipline procedure, or by posting it on a permanent notice board.
Of course, you are unlikely to be able to think up every form of misbehaviour that would fall into the definition of gross misconduct, therefore stick to giving examples. State in your handbook or wherever that certain behaviour is so serious that it constitutes gross misconduct, examples being ….. and list your examples. Give some obvious ones such as those listed above, but be sure to include examples of behaviours that someone who is not used to your organisation would not recognise as being so serious. A new employee, a street-wise school-leaver, may understand that he should not really make jokes about someone with a limp or a squint, but not know that it is a dismissable offence. When you have completed your list, add a comment that the list is not exhaustive and that behaviour of similar seriousness will be treated as gross misconduct.
So, if an employee commits an offence that features in your list, you should treat it as gross misconduct. If you feel that there are extenuating circumstances, such as the employee’s long service and good behaviour, nevertheless still treat it as gross misconduct otherwise you dilute the seriousness of the rules. Instead, if you feel it appropriate, modify the sanction. If the offence is not listed, consider whether it is just as serious as one or two of the others on your list. If you have doubts, put the matter to an HR specialist or discuss it with a couple of colleagues. In the latter case do not feed them with the answer you want but instead ask them, if one of their employees were to do this, would they treat it as gross misconduct.
Assuming that you believe that the employee has committed gross misconduct, the normal rules of discipline procedure should be applied, though perhaps with just one exception. If you believe that the employee’s presence at work could threaten other people or could interfere with your investigation, you should require him or her to stay away from the site on full pay until you are ready to conduct a discipline hearing. Note here the word “investigation”. However obvious the offence, you must conduct an investigation. Interview witnesses, check through records and produce a written account of the problem. If you yourself were involved in the incident, for example the employee threatened you, have someone else conduct both the investigation and the disciplinary interview. Pass the result of the investigation to the employee, give him or her a couple of days to read it, and arrange a discipline interview. Be sure to inform the employee of the right to be accompanied by a colleague or trade union official.
If subsequently you are satisfied that the employee has committed gross misconduct, then, unless there is a sound reason for imposing a lesser sanction, you should dismiss with immediate effect. This is called summary dismissal. You should pay the employee all to which he or she is entitled to date, but for no longer.
You can be pretty sure of two things about the person you have now sacked. He or she is unlikely to feel charitably disposed towards you, and has plenty of time on his or hands to make a claim against you for unfair dismissal. Therefore, before you set off down the path towards dismissal for gross misconduct, read this article again, read your own discipline procedure, make sure that you are justified in treating the incident as gross misconduct, be sure to follow your procedure to the letter, and make a written record of all that you do and all that is said. And if you or any of your colleagues are unsure about any of this, then you really do need to invest in one of our employment law courses!