Real Employment Law Advice

The Risks of Dismissing an Employee for Gross Misconduct

Recently my colleagues and I, have received enquires where an employee has been dismissed for gross misconduct, where we did not consider the employee should have been dismissed for this reason.

This has resulted in having to consider the implications and potential claims which may arise from a dismissal for gross misconduct.

Dismissing an employee fairly

An employee can be dismissed fairly, where the employee has committed misconduct.

This can either be where the employee has committed a series of breaches, and has already received an active final warning, or a single act of serious misconduct, known as gross misconduct.

What is gross misconduct?

Gross misconduct is where an employee has deliberately committed a serious act of misconduct or where their conduct amounts to gross negligence.

The contract of employment and/or the employer’s staff handbook, will normally include examples of conduct which will be considered, gross misconduct, by the employer.

However, what amounts to gross misconduct is fact sensitive, therefore, I recommend employers seek advice before dismissing an employee. This is particularly important if they have been employed for 2 years or more and may therefore be able to make a claim for unfair dismissal.

What is the difference if you dismiss for gross misconduct?

The difference is that where an employee is dismissed for misconduct (following a series of warnings for example), they are entitled to their full notice or a payment in lieu of notice.

A dismissal for misconduct, will usually only be fair, where the employee has received previous warnings (not necessarily for the same reason) and they have received a final warning, which is still active.

Whereas an employee dismissed for gross misconduct is not entitled to notice or payment in lieu of notice.

Also, no previous warnings need to have been given, as the act is serious enough, to amount to a repudiatory breach of contract.  

The Risks of Dismissing an Employee for Gross Misconduct

If an employee is dismissed for gross misconduct the following claims could be pursued:

1. Unfair Dismissal

If the employee has two years’ service, and can show that the act, for which they were dismissed, did not amount to gross misconduct, they may be able to pursue a claim for unfair dismissal.

2. Wrongful Dismissal

If an employee does not have two years’ service, but can show that the act, for which they were dismissed, did not amount to gross misconduct, they may be able to pursue a claim for wrongful dismissal.

I specifically want to address the claim for wrongful dismissal, as this is a claim which is often, in my view, overlooked by employers and not all dismissals which are wrongful, will be unfair. There will be times where a misconduct dismissal is fair, but the Employment Tribunal finds that the specific act of misconduct was not sufficient to amount to gross misconduct, which would have allowed the employer to dismissal without paying notice.

What is Wrongful Dismissal?

This is a claim for breach of contract.

This means if an employee can show they have not committed an act of gross misconduct, then they should have been given notice or paid in lieu of their notice payment, as a result of not being paid this payment, the terms of their employment contract have been breached.

Often, the risk of a wrongful dismissal claim, does not worry employers, as it is limited to an employee’s notice period. However, there are occasions, where the employee’s notice period is lengthy, either because of the employee’s length of service, or because they have a contractually enhanced notice period.

I recommend employers follow a fair procedure when considering disciplinary action, as this will reduce any risk of a claim and will ensure the reasons for the dismissal are fully documented.

If you are unsure if an offence can amount to gross misconduct, you should seek advice before taking disciplinary action, as an employee needs to be made aware of the possible sanctions, when being invited to a disciplinary hearing.

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2 Responses

  1. My partner was dismissed from work and we believe it to be wrongful dismissal. our problem is she is paid cash in hand for hours worked and has not received a contact of work from her employer. can you advise on what grounds we stand for taking the matter to a tribunal

    1. Hi Chris

      Thank you for your comment and I am sorry to hear what has happened to your partner.

      Your partner has a variety of potential employment rights and these rights apply whether she has a contract or not. It also does not matter that she was paid cash, if she is an employee then she may have a potential claim in respect of her dismissal.

      Her rights will depend on how long she has been employed. If she has been employed for 2 years or more then she may have a claim for unfair dismissal. If she has been employed for less than 2 years but more than one month she is entitled to at least a weeks’ notice pay (as long as the reason for dismissal is not gross misconduct). There may be other rights under the Equality Act (for example), much will depend on her circumstances.

      Please feel free to call the office on 01983 897003 if you would like some more specific advice.

      Kind regards

      Alison

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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.


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