Gross misconduct and other disciplinary action

| 8 min read

Unfortunately for employers, there is no law that states what actions or behaviours constitute a disciplinary offence.

Instead, it is left to an employer to state them in business policy documents (such as a staff handbook), to follow ACAS guidelines, or possibly (because doing so is very subjective) to determine them by a test of reasonableness.

Contents

What is gross misconduct?

Avoiding claims of unfair dismissal

Suspension from employment

Investigating claims

Taking action

Disciplinary hearings

Disciplinary action

Appealing the outcome of a disciplinary hearing

What is gross misconduct?

Gross misconduct is an action or behaviour that breaks the implied contractual term of trust and confidence between an employee and employer.

An employee can be summarily dismissed for gross misconduct without notice or payment in lieu. That contrasts to other actions that are not gross misconduct, for which the employee can be disciplined, but for which he or she cannot be instantly dismissed.

Actions that are likely to be gross misconduct (and therefore justify summary dismissal) are likely to be serious violations of acceptable workplace conduct.

Actions that are likely to constitute gross misconduct might include:

  • actions against the business such as theft, vandalism, sabotage, and fraud
  • actions against employees and related persons such as physical violence, bullying and intimidation, indecent behaviour, and sexist or racist abuse
  • actions that endanger the business, such as gross negligence, serious breaches of health and safety, bribery and other illegal activity
  • actions that employment impossible, including gross insubordination and intoxication (any drugs including alcohol)

Other actions that are likely to break the implied trust and confidentiality between employer and employee may also be gross conduct. However, some, such as misusing confidential information (which is also difficult to prove), or setting up a business in competition would usually be prohibited by the employment contract and therefore would constitute a breach of contract.

Avoiding claims of unfair dismissal

Poor timekeeping, occasional absenteeism and minor negligence are unlikely to be gross misconduct. They are more likely to be disciplinary issues for which instant dismissal is not reasonable (fair).

The employee may be able to claim unfair dismissal if he or she is summarily dismissed for something that a tribunal finds is not gross misconduct. This is certainly the case if the employee has completed at least two years of service, and possibly if he or she has completed less time.

Whether gross misconduct has occurred or not, the conduct of the employer must be fair. It is recommended that a fair investigation is carried out regardless of the seriousness of the allegations or the weight of the immediate evidence against the employee. The worker should also have the opportunity to respond to the allegations or evidence.

Suspension from employment

Suspension is not a disciplinary action. It allows an employer to investigate the circumstances surrounding an event without the employee influencing the investigation or causing damage to the organisation.

It is not a default right under law. The employment contract (or staff handbook to which the contract refers) must give the employer the right to suspend.

An employer needs to be careful so as not to allow it to be seen as a prejudgment of guilt. It is therefore a decision that should not be taken lightly.

During any investigation of wrong-doing, the employee should be treated as innocent in order for the employer not to break the implied term of trust, and so that the employee cannot claim he or she is being hounded out by constructive dismissal.

An employer should consider whether it is the most appropriate course of action, and whether other actions might achieve the same outcome. For example, could the employee work elsewhere (such as in a different office, or at home), or work different hours, or change duties, or be supervised.

Suspension should be for as short a period of time as possible and kept under review.

Before suspending an employee, you should inform him or her of the allegation and provide an opportunity for him or her to respond.

In this meeting, you should agree with the employee whether the suspension should be announced to other employees, and if so, what wording this should take. It is in the employee’s interests as well as the employer’s to quell rumours and remove any suggestion of guilt.

During the suspension, the employee remains employed, but simply does not attend work. That means he or she retains all rights under the employment contract and in statutory employment law. In most circumstances the employee is likely to continue to be entitled to receive full pay and benefits (including sick pay and maternity pay) and have the right to take and cancel annual leave.

If the employee earns performance related pay (e.g. commission on sales), and suspension would prevent him or her from earning it, then it may not be possible to suspend him or her unless the employment contract states what should happen.

An employer might be able to persuade an employee to cancel pre-booked annual leave or to discourage new leave from being booked. It might be that an investigation can be completed more quickly if the employee is available for interviews or for help.

Investigating claims

In order to take action, the employer needs to have sufficient evidence that misconduct happened. This needs to be recorded.

It is important that impartiality is maintained throughout the investigation. The aim is to find out whether the misconduct happened, not establish the guilt of the employee.

Some evidence might be from e-mails, phone calls (if recorded) or CCTV. These should be recovered before they might be deleted. However, the employee still has rights under privacy law, so, for example you should not read personal email messages.

The employer is also likely to want to talk witnesses, including the employee himself or herself. It should be made clear that the interview is an investigation, not a disciplinary hearing.

Interviewees should be told why they are being asked questions yet maintain confidentiality as far as possible. Guilt shouldn’t be implied through the questions.

Questions should be open and not leading – they shouldn’t be framed in such a way to obtain the answer that is sought. Ideally, each interview should be recorded (by video or audio, or in writing) with the interviewee confirming that it is a true and fair version of events.

To maintain independence, ideally someone unconnected to the event should accompany the interviewer to act as a witness.

Taking action

After the investigation, an employer has three options regarding action:

  • take none – perhaps because no offence was committed or because there is insufficient evidence
  • hold an informal meeting
  • conduct a disciplinary meeting

Whether an informal meeting or a disciplinary meeting is more suitable depends very much on the circumstances. An informal meeting is not a precursor to dismissal, whereas a disciplinary hearing is. However, an informal meeting should be noted on the employee’s file even if it can’t later be reopened.

If the meeting is informal, the employer should state that it is an informal meeting and not a disciplinary one.

Dismissal should not be threatened or implied, even if the employee is unremorseful and uncooperative.

Disciplinary hearings

A hearing is structured meeting. The purpose is to present the evidence against the employee to him or her and to give him or her an opportunity to respond.

The meeting should be arranged with at least 5 days working notice so that the employee has time to prepare for it.
The employer should write to the employee inviting him or her to the hearing. The letter should state the date, the time and the location of the meeting, set out the allegations, the witnesses who will give evidence and the possible consequences (such as a formal warning, or dismissal).

The letter should also remind the employee that he or she has a right to be accompanied to the hearing by someone else. The companion may be a work colleague or someone who is not otherwise involved in the business. He or she may be a trade union representative even if the employee is not a member of the union or if the employer has any relationship with the union. The companion cannot be the employee’s legal representative.

The companion’s role is to speak for the employee: to put forward the employee’s case and sum up. Consultation between the employee and the companion is allowed, but the companion cannot answer questions directed at the employee, nor interfere with anyone else’s contribution to the hearing.

If the companion cannot attend the scheduled hearing, then it should be rescheduled to a time where the companion may join. However, if there is no good reason to continue delaying it, then the employer may reasonably conclude that the hearing should proceed without the companion.

Employers should be careful if the reason is one that may allow the employee or the companion to claim discrimination. For example, if the companion cannot attend the hearing because of building accessibility issues for disabled people, it may be necessary to change the venue.

The employee is also allowed to call witnesses, although he or she (or the companion) cannot ask questions. He or she may, however, pass comment about the testimony.

A disciplinary hearing should be attended by: the employee, the employee’s companion (if there is one), a chairperson, a member of the human resources team (or a senior member of the management team who does not work with the employee) to make sure the procedures are followed correctly. Witnesses should be called to give evidence, but do not need to stay in the hearing.

The chairperson should introduce the attendees, explain the allegations and set out the evidence. The employee or his or her companion should set out the employee’s position.

Disciplinary action

After the meeting, the employer must inform the employee as to the conclusion of the hearing, and the outcome.

An employer may need time to consider what the outcome should be, based on the prior disciplinary record of the employee, previous similar cases in the workplace, and the comparative seriousness of the offence versus mitigating factors. The employer should not take longer than necessary to make a decision.

Except in cases of gross misconduct, where the outcome would be instant dismissal, or repeat offences, the outcome is likely to be a warning.

A warning should ideally be given in writing (although a verbal one is valid). It should last for a fixed time, after which it expires. A first warning might last six months, and subsequent ones might last one year.

A warning should state why it has been given and confirm that no further action will be taken unless another offence is committed within the warning period.

If an employee commits an offence during a first warning period, then he or she should be given a second, final warning. If a third offence is committed in the second warning period, then the employee can be dismissed.

Appealing the outcome of a disciplinary hearing

An employee has a right to appeal the outcome of a disciplinary hearing, either on the basis that the procedure was not followed correctly, or on the basis that the new evidence is available, or because the employee feels the decision is unfair or wrong.

Where a hearing is claimed to have been flawed in following the correct procedure, the hearing should conducted completely anew.

If there is new evidence, the original hearing might be considered again by someone who wasn’t present the first time around.

A companion can be brought by the employee to the appeal meeting.

ACAS advises that an appeal must be conducted impartially, and where possible, by someone not previously involved.

Because this person may overrule the previous decision, it is usually more appropriate that this person holds a more senior position in the company than the last chairperson.

The appeal might reconsider the evidence, or it might consider whether the first hearing was fairly conducted.

At the end of the appeal, the chairperson should ideally tell the employee the outcome immediately. This decision should also be confirmed in writing.

The employee does not have a right to appeal further.

Please note that the information provided on this page:

  • Does not provide a complete or authoritative statement of the law;
  • Does not constitute legal advice by Net Lawman;
  • Does not create a contractual relationship;
  • Does not form part of any other advice, whether paid or free.
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