I have had a few interesting questions recently around the issue of gross misconduct. It’s not always a simple area.
As ever, with employment legislation, it’s as much about the employer dealing with it in the right way and looking at the right issues as it is about getting the answer right. So, here are a few thoughts that might help.
When does misconduct amount to gross misconduct?
Sometimes the answer will be obvious. For example assaulting a customer or colleague or theft from an employer. What about those situations that are less clear cut?
The first thing I would ask myself is whether the conduct is deliberate. If the conduct is not deliberate, it’s unlikely to be gross misconduct. Behaviour that is not wilful can only be characterised as gross misconduct if it amounts to gross negligence. This is right out at the far end of the spectrum. Behaviour that is so obviously negligent that is borderline reckless.
If the conduct is deliberate, the next question I would ask myself is whether the conduct is dishonest. If behaviour is both deliberate and dishonest it is highly likely that it will be gross misconduct.
What if the behaviour is not dishonest? It may well still amount to gross misconduct but ask yourself why the behaviour is so serious:
- Is it wilful insubordination? If so, was a clear instruction given? Is the breach clear? What is the employee’s explanation?
- Is it breach of a rule or policy/procedure? If so, has the particular requirement been clearly notified to the employee? Have the consequences of non compliance been spelt out?
- Is the particular context important? Is there something about the workplace or work situation that makes this sort of conduct especially serious?
So how does that affect how an employer approaches the situation?
Firstly, it underlines the importance of weighing up the employee’s motives for behaving in the way that they did. Coming to a view as to an employee’s motive will help you determine whether the conduct was deliberate and/or dishonest – both very important factors in establishing whether the conduct amounts to gross misconduct.
Secondly, it is very important that you clearly state each of the conclusions reached and your reasoning in coming to those conclusions.
If an employer is going to justify a dismissal by arguing that the employee’s conduct was deliberate or dishonest, that needs to be clearly expressed in the outcome letter and you need to explain the reasons for coming to that view.
If you do conclude that there is an element of dishonesty, resist the temptation to try to be kind by not referring to it. I have experienced many occasions where an employer, to save embarrassment, has deliberately avoided stating its conclusion that the employee’s actions were dishonest. That is a dangerous path. If there is no finding of dishonesty, it may make it much harder to justify the dismissal.
Equally important is that an employer sets out its reasoning fully by referring to the piece of information or finding that has led it to a particular conclusion, eg “I have concluded that the employee deliberately failed to follow the correct procedure. I have come to that conclusion because the employee confirmed that he knew that the policy was available on the intranet and the employee’s colleagues all confirmed that they understood and applied the correct procedure”
Thirdly, consider the employee’s response to the allegation carefully and if necessary investigate it. The area where a Tribunal has greatest scope for interfering with an employer’s decision is in relation to the reasonableness of the employer’s investigation, including the way in which you look into the employee’s explanation for their conduct.
- Be clear as to why it is gross misconduct
- Look closely at the employee’s motive and investigate any explanation thoroughly
- If it’s deliberate and dishonest – it’s likely to be gross misconduct
- If it’s not deliberate – is it really gross misconduct?
- If it’s not dishonest – it may still be gross misconduct but be clear as to why it is so serious
- State your conclusions and explain your reasoning fully
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