Dealing with an issue of gross misconduct can be extremely stressful for a business and its employees, and if the issue isn’t addressed and dealt with immediately it can break down relationships and harm businesses beyond repair. Identifying what qualifies as gross misconduct can often be confusing, as there are so many factors to consider. But as a general rule:
Gross misconduct is a single act of misconduct that is serious enough on its own to justify the employee’s immediate dismissal.
Organisations should implement employment contracts that contain a non-exhaustive list of offences that the employer regards as sufficiently serious to justify dismissal, even for a first offence. Examples might include:
- theft, fraud, unauthorised possession of company property, deliberate falsification of records or any other form of dishonesty;
- physical violence or threats of violence;
- serious bullying or unlawful discrimination or harassment;
- deliberate and serious damage to the employer’s property;
- deliberate accessing of internet sites containing obscene material;
- extremely serious insubordination or disobedience;
- bringing the employer into serious disrepute;
- serious incapacity at work through an excess of alcohol or illegal drugs; and
Each employer should have its own list, taking into account its own particular business circumstances. For example, an employee’s breach of health and safety may be very serious in an industry where health and safety is paramount, but may be a more minor offence in other industries. The list should state that it is not exhaustive.
The importance of having such a list lies in the fact that the employer will then be able to demonstrate to an employment tribunal that the employee was aware that committing a particular offence was likely to result in his or her summary dismissal from employment. That said, employers should not fall into the trap of listing every possible offence that they can think of as amounting to one of gross misconduct.
Each organization should follow their own disciplinary procedure following the misconduct allegation. These policies and procedures should be in line with the ACAS code of practice, as failing to follow ACAS guidelines could result in unfair dismissal claims being made against the company.
Neutrality and impartiality are crucial when handling gross misconduct cases. Employers should insure, where practicably possible, that the investigation officer, disciplinary officer and appeal manager roles are performed by different members of the management team. This will prevent bias or unfair treatment on the employee in question. This measure also protects the employer if the case progresses to an employment tribunal hearing.
Overall, this guide aims to prevent gross misconduct cases from arising in the workplace. However, if such instances do occur then these steps should guide and protect employers when following the appropriate procedures.
If we can help you with this or any other HR issue, please do not hesitate to contact a member of our HR Team at HR Services Scotland Ltd on 0800 652 2610.