Summary dismissal and gross misconduct

What is gross misconduct?

Gross misconduct is actions or behaviours displayed by an employee that are so bad (ie extreme or abnormal) that the employer cannot be expected to employ them anymore. Such conduct is so serious that it undermines the mutual trust and confidence between the employee and their employer and seriously breaches the employment contract. In this situation, the employee can be summarily (ie instantly) dismissed. This means that the employee can be dismissed without notice or payment in lieu of notice.

What constitutes gross misconduct?

There are certain types of incidents or behaviours that will normally amount to gross misconduct, although there is no comprehensive list. For this reason, examples of what is generally considered gross misconduct should be outlined in Employment contracts or an Employee handbook. It is also important to make employees aware of the repercussions of various misdemeanours in a Disciplinary policy or procedure.

Whether or not an act or omission by an employee constitutes gross misconduct will largely depend on what would be reasonably considered to be a serious violation of acceptable workplace conduct. If an employee can successfully argue that they had no reason to believe a certain action would be a fireable offence it will often be difficult to justify summary dismissal on grounds of gross misconduct.

A few examples of common types of gross misconduct include:

• theft and dishonesty

• vandalism of employer property

• fighting or physical violence

• gross negligence

• serious insubordination

• accepting or offering bribes

• alcohol intoxication or being under the influence of illegal drugs (except alcoholism or drug addiction which may be more suitably dealt with as a capability issue)

• indecent behaviour

• sabotage

• fraud (eg making a fraudulent expenses claim)

• serious breaches of health and safety rules

• offensive behaviour such as racist or sexist abuse

• illegal activities and criminal acts, whether during or outside the course of employment

• bullying, harassment or intimidation of colleagues or managers

There are also some more 'grey' areas where it helps to identify such behaviour in advance (eg in an employment contract or employee handbook) as being considered serious enough to constitute gross misconduct. Examples include:

• downloading or viewing pornography

• downloading software from the internet or using personal software (where there is a risk of viruses etc)

• misusing confidential information or setting up a competing business

• use of social media which tarnishes the employer’s reputation

Some behaviours are unlikely to be reasonably considered gross misconduct, even if they are mentioned as such in company documentation. Examples include:

• poor timekeeping

• absenteeism

• poor personal appearance

• minor negligence or substandard work

These can be dealt with as disciplinary issues. Remember to state in any list you create of what is considered gross misconduct that the list is not exhaustive.

How to dismiss someone for gross misconduct

You can summarily dismiss someone instantly for gross misconduct which means you don’t have to give notice or payments in lieu of notice. However, you should investigate the incident and give the employee a chance to respond before deciding to dismiss them. This helps ensure the entire procedure is fair and reduces the risk that the dismissal is potentially unfair, in which case the employee could claim unfair dismissal.

The first thing is to ascertain the facts of the incident and conduct an investigation, interviewing any relevant witnesses and the employee themselves. If necessary, you may decide to suspend the employee (on full pay) while you’re conducting the investigation. However, suspension should only be considered if it’s appropriate in the circumstances. For example, if investigations have already discovered sufficient evidence of the alleged misconduct to make suspension reasonable and there are perceived risks to your business or to others’ health and safety.

Arrange a disciplinary hearing and allow the employee to bring a companion (such as a colleague or union official), making sure that the employee is aware of the allegations against them prior to the meeting. The employee should be invited to the hearing in writing using,  for example, an Invitation letter to a disciplinary hearing for misconduct. 

Once you have conducted the hearing and come to a decision to dismiss the employee, you should prepare a Formal letter confirming summary dismissal. This should cover the reason for dismissal, the legal basis for gross misconduct, any prior warnings the employee was given, the employment termination date, ineligibility for notice or a payment in lieu of notice, arrangements for holiday pay and final salary payment, and the need to return property. It should also mention the right to appeal against dismissal.

What risks are there when dismissing an employee for gross misconduct?

It's important to ensure that you only consider summary dismissal for gross misconduct where this is a reasonable and proportionate response in the circumstances. Furthermore, you should follow the correct procedure (see above) and allow the employee to respond to any allegations.

An employee who has completed 2 years' service may sometimes be able to bring a successful claim for unfair dismissal if they're summarily dismissed due to an action or omission which does not actually amount to gross misconduct. Even if an employee does not qualify for standard unfair dismissal rights (ie because they haven't completed 2 years’ service) they may still be able to claim unfair dismissal if they can prove that the dismissal was due to certain reasons, for example, illegal discrimination, health and safety, whistleblowing, or trade union activities.

Another consideration to be aware of is any data protection issues. As the dismissal process will involve processing employee personal data, you should tell employees the types of data you might collect about them and what you’ll do with it in an Employee privacy notice (a statement describing how you collect, use, retain and disclose personal information). For more information, read Data protection and employees.

Finally, whether or not an employee has recourse to unfair dismissal protections, if a summary dismissal was not justified they can still pursue a wrongful dismissal claim (ie a legal claim available when an employer breaches one or more of the terms of an employee's employment contract when they dismiss them). A wrongful dismissal claim allows an employee to claim for any payment that they would have received had they been allowed to work out their notice. For more information, read Wrongful dismissal.