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What is Gross Misconduct?

The concept of gross misconduct has often left employers feeling that there is no further option but to terminate the employment of the individual. It has become increasingly clear that even in cases of severe misconduct, outright dismissal may not always be the most appropriate recourse.

Gross misconduct refers to serious wrongdoing or behaviour by an employee that fundamentally breaches the trust and expectations of their employer.

It typically involves actions that are considered severe or egregious, such as theft, fraud, violence, harassment, serious negligence, or significant breaches of health and safety regulations. The exact definition of gross misconduct may vary depending on company policies, industry standards, and legal regulations.

Employers often outline examples of gross misconduct in their employee handbooks or disciplinary procedures to provide clarity on what constitutes unacceptable behaviour.

When instances of misconduct arise, it is crucial for employers to deliberate carefully on whether dismissal is a warranted response. This is of particular importance when the termination could have long term effects on the individual’s career prospects or could in itself be a career ending termination.

This is often the case for those in specific industries such as care, safeguarding etc. This entails a thorough examination of various factors to ensure that any decision made falls within the bounds of reasonableness, especially when contested in an Employment Tribunal. A very important but often overlooked element of consideration are the mitigating circumstances of any given misconduct situation; there is often a vigorous attempt to prove guilt rather than an even-handed approach or exploration of other possible causes and factors.

A notable case, Brito-Babapulle v Ealing Hospital NHS Trust, highlighted the fallibility of assuming that dismissal invariably aligns with instances of gross misconduct. The Employment Appeal Tribunal overturned the initial ruling of the Employment Tribunal, emphasising the need to look at each case on its own merit.

The individual involved in this case was a consultant haematologist within the NHS who also engaged in private practice. During a period of sick leave from the NHS, it was discovered, and later acknowledged, that she had been conducting work for her private patients. Subsequently, she faced dismissal following a disciplinary procedure, partly due to the employer’s contention that her actions constituted fraudulent behaviour and therefore they were entitled to dismiss for gross misconduct. The Appeal Tribunal stated the Employment Tribunal had misdirected themselves by stating that dismissal was always a reasonable response where a finding of gross misconduct has been made.

Therefore, there is a duty to evaluate whether the employer’s actions are reasonable or unreasonable in light of the grounds for dismissal.  Employers often do not appreciate the individual nature of each dismissal and how the facts should be assessed carefully each and every time even in cases that are similar to one another. There is no one size fits all dismissal procedure.

Mitigation factors should all be carefully weighed and could include personal history, length of service, disciplinary history, and consistency in treatment among employees.

Moreover, less obvious factors, such as the potential impact of dismissal on the employee’s future employment opportunities, should be considered.

This underscores the importance of evaluating both the misconduct itself and any mitigating factors unique to each case.

Employers are encouraged to explore alternatives to dismissal, even in cases involving gross misconduct. This might entail considering lesser sanctions, such as demotion, a final written warning accompanied by additional training, in order to effectively address the issue at hand.

A major pitfall in many employer led procedures is a failure to document the decision-making process. It is imperative for employers to meticulously document their decision-making, clearly outlining the factors taken into account and the rationale behind the chosen course of action. Such documentation serves as crucial evidence to support the fairness and thoroughness of the decision-making process.

The key takeaway point here is that even though gross misconduct may be established it is not always the equitable approach and other sanctions may be more appropriate. The upshot being each case should be looked at on its own set of circumstances.

If you would like any support with a disciplinary process or advice on whether something constitutes gross misconduct we would be happy to help.

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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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