HR · 4 October 2019

The employer’s guide to gross misconduct in the workplace

Gross misconduct

Business Advice recently teamed up with HR and employment law consultancy Peninsula to create a short series on various HR-related issues. This first article seeks to answer any questions SME employers might have on gross misconduct in the workplace.

Hadn’t really thought about it? You’re not alone. Indeed, you likely think of gross misconduct as one of those ‘it’ll never happen here’ scenarios. In truth, however, any one of your employees – at any time – could behave in a manner that constitutes gross misconduct. It’s good to be prepared and know what actions are available to you, therefore, should such a situation arise.

Kate Palmer, associate director of advisory at Peninsula, added: “Employers have a duty to protect their staff from harm. So any individual who jeopardises this should receive the appropriate disciplinary actions. It’s important to remember that employees who participate in offensive behaviour may claim their actions were inoffensive.

“Despite this, you can still proceed with dismissal for gross misconduct, especially if these actions threaten the integrity of the organisation and stand to impact workplace morale negatively.”

What is gross misconduct?

Gross misconduct is when an employee commits an act that destroys the relationship of trust with you as the employer. Such acts must be serious enough to make it impossible to continue the working relationship. Gross misconduct therefore warrants dismissal without notice, or pay in lieu of notice, for a first offence – as long as you follow a fair procedure.

Gross misconduct can include acts such as theft, physical violence, gross negligence and serious insubordination. These are different to acts of misconduct, examples of which might include persistent lateness or unauthorised absence from work.

How do you define misconduct as an employer?

Exact definitions of gross misconduct vary from company to company, depending on the culture. Yes, nearly all organisations will consider acts of physical violence, fraud or theft as gross misconduct. But ‘using offensive language’, for instance, will crop us much less frequently as an example in employee handbooks.

The employer’s guide to gross misconduct in the workplace
Gross misconduct warrants summary dismissal as long as you follow a fair procedure.

While it’s important to provide specific examples of what your business considers gross misconduct, you’ll also find it useful to clarify that the examples given do not constitute an exhaustive list.

Examples of gross misconduct

Companies often cite theft, fraud, dishonesty, gross negligence and serious insubordination as clear examples of gross misconduct. Concrete examples of some of these might include stealing from colleagues, stealing company equipment, doctoring time sheets or fabricating expense claims. Other examples of gross misconduct might include:

Damage to property

This could involve deliberate or wilful damage to property or gross negligence resulting in substantial loss or damage to property.

Breaching health and safety rules

This could involve dangerous driving, consistently refusing to wear personal protective equipment or not following other procedural requirements.

Gross misconduct in the workplace
Consistently refusing to wear personal protective equipment could constitute gross misconduct.

Serious breaches of health and safety rules can cause companies acute reputational damage. And there is also significant liability for employers.

Excessive use of alcohol or drugs at work

This could involve serious incapacity due to drinking or taking drugs or the possession, consumption or selling of drugs in the workplace.

The vast majority of employers will have strict rules on drugs and alcohol, such as a total ban on employees arriving to work under the influence of either.

Offensive behaviour

This could involve bullying, harassment, intimidating behaviour, threats of violence or fighting.

Of course, employees behaving offensively may well claim that their actions were inoffensive. This does not prevent you from proceeding with the dismissal for gross misconduct, however.

Examples of gross misconduct in the news

In 2017, a disciplinary panel dismissed Sir Leonard Fenwick from Newcastle-upon-Tyne Hospitals NHS Foundation Trust for gross misconduct. The decision came after an investigation into claims of bullying and abusive behaviour.

Fenwick denied the accusations, even describing the investigation as “an orchestrated witch hunt”. However, the two-day disciplinary hearing found that “allegations relating to inappropriate behaviour, use of resources and a range of governance issues were proven”. The trust also referred “a number of concerns” arising from the investigation to the NHS counter-fraud team, NHS Protect.

How do you dismiss an employee for gross misconduct?

As an employer establishing whether an employee’s actions amount to gross misconduct, you will need to do two things. The first is to determine whether the employee’s behaviour is enough to destroy the trust and confidence of your employment relationship. The second is to refer to your own gross misconduct procedure.

If you can prove that summary dismissal is a reasonable response, and that you have followed a fair procedure, then dismissal without notice is a perfectly appropriate disciplinary action. You may also want to consider drafting a gross misconduct dismissal letter as part of proceedings in order to keep a written record for your organisation.

Still have questions? Get expert advice on gross misconduct in the workplace. Leading HR, employment law and health & safety consultancy Peninsula can help guide you through any employee disputes. Arrange a free consultation with one of their local advisers today.

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ABOUT THE EXPERT

Olly Goodall is an editor at Business Advice. He researches, creates and delivers diverse content types such as blogs, SlideShares, eGuides, interviews and more. Working with clients to tailor content to each target audience, he is involved throughout the creative process, from content brainstorming through to keyword research and content creation. With experience client side and agency side, he has written online and offline content for a range of sectors, including tech, education, transport and finance.

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