The employer’s guide to gross misconduct in the workplace
By Niamh Kelly
2019-11-04
The employer’s guide to gross misconduct in the work place
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.
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.
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.
---------------------------
Remember, remember the 5th of November, gunpowder, treason and plot…. But there are several things about the Guy Fawkes case that a modern day employer would need to consider, before applying any ‘disciplinary sanction’.
First of all, Guy Fawkes could have raised his concerns informally. An enlightened employer would have taken his concerns seriously and tried to resolve it at this level. This could have helped foster a good working relationship with him; and of course, avoided a formal grievance procedure which could have ultimately led to an Employment Tribunal.
If Mr Fawkes was unhappy with the outcome, he could have raised a more formal grievance, in writing, setting out what his problem was. At this stage, his employer would have consulted their workplace grievance policy for the next steps and ensured that a formal procedure was followed.
He could have considered the matter to be so serious that he had no option but to follow the employers ‘Public Interest Disclosure’ policy and become a Whistleblower. He would have been protected by the law if he had reported his concerns about the reign of King James 1 as being ‘a criminal offence’, a ‘miscarriage of justice’ or the ‘covering up of wrongdoing’.
Mr Fawkes however, did not do any of this and he was discovered in a cellar with all of his gunpowder and matches. However, he had clearly been down in that dark dank cellar for in excess of the 48 hour Working Time Directive. It has yet to be proved that he had signed an opt out.
This should really have sounded alarm bells for his employer.. was his mental health suffering? Was Guy Fawkes bullied into being the one who had to light the match at the right time? Clearly there was an issue of communication and team dynamics within the group, as he was the one that was caught!
A full scale investigation should have taken place at this point as these concerns could have been addressed. Had his employers done that, then Guy Fawkes would have been notified in writing that there was a disciplinary case to answer. This notification should have contained sufficient information about his alleged misconduct and its’ possible consequences to enable him to prepare to answer the case. He would have normally been given copies of any written evidence including witness statements and of course, would have had the right to be accompanied by another colleague or a trade union official at the disciplinary hearing.
Instead, his employers relied on an anonymous letter and a confession elicited after a few days of torture in the Tower of London, which we don’t believe an Employment Tribunal would have seen as the actions of a reasonable employer!
In addition, Mr Fawkes and a co-accused (Mr Wintour) had a private conversation whilst in adjoining cells, secretly recorded by a government spy. This was clearly entrapment, in breach of both men’s privacy and a possible offence under the General Data Protection Regulations.
Despite a written confession, Mr Fawkes professed his innocence throughout the disciplinary hearing and clearly felt that the proposed disciplinary action was wrong and unjust. The employer at this point failed to follow the ACAS ‘Code of Practice on Disciplinary and Grievance’ and did not offer him an appeal.
Although a failure to follow the Code does not, in itself, make the employer liable to proceedings; an Employment Tribunal would have taken the Code into account when considering the case. Had they found for Mr Fawkes, the Employment Tribunal could have adjusted any award made by up to 25% for unreasonable failure to comply with any provision of the Code.
In any event, Mr Fawkes (surely the most unlucky of employees), weakened by torture and aided by the hangman; climbed the ladder at the scaffold and fell, breaking his neck. Was it poor equipment? Was Mr Fawkes cleared to work at heights? What about the actions of the other worker who failed to prevent this accident? Were Health and Safety notices clearly displayed?
No record made in the Accident Book, no RIDDOR form was completed and no Health and Safety investigation was ever carried out. The employer could have left themselves open to a criminal prosecution by a regulator such as the Health and Safety Executive or local authority (in this case, Westminster City Council). And of course, Mr Fawkes grieving family could have sued his employer under civil law, for negligence.
So all in all, in failing to follow a fair process; the modern day employer of Guy Fawkes would have found themselves on the wrong and costly side of the law, no matter how serious they felt their employees misconduct was!
About the author:
© Níamh Kelly – Director of The HR Dept Shropshire – is an award winning HR professional with over 25 years HR experience at a Senior level in the corporate, public and voluntary sector. Working with SMEs across the County, The HR Dept – Shropshire has rapidly developed a very strong client base of local companies. So if you have a question about Recruitment & Right to Work; to Resolving Problems; to Redundancy… she’s here to help you!