Gross misconduct
Gross Misconduct is a term used to describe a potentially fair reason to dismiss an employee because of an act that they have done in the course of their employment. If an employer establishes that an employee has committed gross misconduct, it is almost always a reasonable response to the misconduct to terminate the employee’s employment.
If you have received a letter informing you that you are being investigated in relation to gross misconduct, or charged with gross misconduct, we will be able to assist you so please get in touch.
What does Gross Misconduct mean?
Gross misconduct is conduct so bad that it is outside the parameters of ordinary misconduct. Your employer will usually have a company handbook and in that handbook will be a disciplinary policy. The disciplinary policy will contain a non-exhaustive list of examples of gross misconduct, which are likely to be theft, dishonesty, physical violence, gross negligence, gross incompetence, or serious insubordination.
What happens if I am charged with Gross Misconduct?
Ordinarily, your employer will commence an investigation prior to alleging gross misconduct, and the investigation parameters will refer to gross misconduct, so you will have fair warning that a charge of gross misconduct is likely. Our strong advice is to contact us before you are charged with gross misconduct, preferably as soon as the issue first arises. This allows us to implement measures to control the damage and open up lines of communication with your employer.
It is likely that your employer will suspend you from work if it has prima facie evidence of gross misconduct. If you have not contacted us previously, being suspended from work should be an urgent trigger to get in touch. Your employer will require you to stay away from your place of work and not contact any employee save for with their consent. Your employment contract, and the terms of the contract, still exist and you will be paid.
Your employer will then write to you making allegations against you and providing you with evidence of the allegations. It is likely that your employer will then ask you to attend a disciplinary hearing and warn you that if the allegations against you are substantiated, you may be dismissed.
What should I do if I am charged with Gross Misconduct?
Our primary advice would be, speak to us. We can review your situation and take account of what you want to achieve in your situation, then advise you of realistic outcomes and how we will go about achieving them.
It may be that we can persuade your employer that the evidence against you is very flimsy or the charges do not amount to gross misconduct, in which case you will be able to keep your job. It may be that we advise the case is better off settled via a negotiated exit in which you receive notice and a reference and some compensation.
Don't wait until you attend the disciplinary hearing to seek advice
The sooner you obtain advice, the sooner we can work to achieving a good result. It is very difficult to negotiate in a case of gross misconduct after the disciplinary hearing has been held, and even harder once dismissal has occurred.
Can I be Dismissed?
The short answer is, yes. The slightly longer answer is yes, but only if your employer can establish that the reason for your dismissal was your conduct, and that in the circumstances dismissal was a reasonable response to the misconduct.
It is fairly easy in most cases for an employer to establish that the reason for a gross misconduct dismissal was the conduct of the employee. It is much harder to establish that dismissal was a reasonable response to the conduct. Your employer’s ability to establish this will, however, depend on many things, such as the facts and circumstances surrounding the misconduct and the investigation it undertook.
Some cases are open and shut, whereas most contain some grey areas. The larger the grey area, the greater the chance of you keeping your job or obtaining a financial settlement for unfair dismissal.