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GROSS MISCONDUCT OR NOT???

By December 1, 2015Uncategorized

GROSS MISCONDUCT OR NOT???

 

When can an employee be dismissed for Gross misconduct?

The simple answer is ‘Not very often’ as this is actually a very unusual and even rare occurrence!

Gross misconduct is basically an issue/action which goes to the heart of the contract and the employee cannot therefore be allowed back to work.

What is the different process for Gross Misconduct Dismissal and Contractual Dismissal?

  1. Gross Misconduct – Generally would need to be suspended on full pay whilst investigating then full process followed ie. Investigation, Invite to Disciplinary hearing, Disciplinary hearing and outcome letter with right of appeal. Dismissal will be without notice pay.
  2. Contractual Dismissal – This would occur when the employee has followed the warning process, generally Verbal warning, Written warning, Final written warning following by dismissal, with notice. Full process would also need following.

What Gross Misconduct isn’t:-

  • Repeated misconduct – as if it wasn’t deemed as Gross misconduct the first time then it is very unlikely to be Gross misconduct this time
  • Numerous issues adding up to Gross misconduct – Gross misconduct is generally one act rather than lots of misconducts adding up to wanting to dismiss as each misconduct should be dealt with on it’s own merits
  • AWOL, unacceptable levels of absence/lates etc will generally not be Gross misconduct

What Gross Misconduct can be:-

  • Theft
  • Physical Violence
  • Fraud
  • Under the influence of drugs/alcohol at work
  • Severe acts of negligence

There are others but they would need to be severe breaches of those issues eg. H & S, criminal offences, bringing company into disrepute etc.

You would also need to check your Contracts/Handbook to ensure that they are covered in there, in general.

However, even if you have, for example, ‘Swearing at a Manager’ in the Contracts, it doesn’t necessarily mean that you could carry out a ‘safe’ Gross misconduct dismissal, as a Tribunal would look at whether it would be ‘reasonable’ for an employer to dismiss for this.

The other misconception is that Summary Dismissal for Gross misconduct can be on the spot ‘You’re Fired’.  However, a full process needs to be followed in general (this can sometimes be amended slightly if under 2yrs service and the contract covers it).

If in doubt…..speak to your Advisor at Elcons on 01422 822842.