Gross misconduct in the workplace is categorised as behaviour which breaks the rules laid down in the employment contract, entitling your client to dismiss employees without notice or pay in lieu of notice. However, when an incident of gross misconduct is suspected, your client must still adhere to the ACAS Code of Practice on ‘Disciplinary and Grievance Procedures’ whilst taking disciplinary action.
Examples of gross misconduct at work can include theft, fraud, physical violence, and gross negligence, although these may differ depending on the sector. Your client should ensure that examples of gross misconduct are included from the outset in their contracts of employment, ensuring employees are aware of their responsibility to abide by these rules.
Should your client become aware of suspected gross misconduct, they must ensure a full investigation takes place. Whilst not always appropriate, it may be necessary to suspend the individual in question with full pay for the length of the investigation. It should be made clear that the suspension is not representative of any pre-judgement, but rather to ensure the investigation is conducted with the utmost integrity and efficiency.
The investigation should be carried out by a member of the HR department or a trained manager. Fact-finding meetings should be arranged with any potential witnesses to ascertain the full extent of the circumstances. A separate fact-finding meeting should be conducted with the suspended employee. The minutes of all meetings should be signed and dated by the respective individuals.
Your client should then evaluate the evidence and determine whether there is a case to answer. If not, the employee may have their suspension lifted and return to work and your client should provide written confirmation that no further action will be taken. If the investigation has resulted in your client’s belief that there is a case to answer, then they should be notified of this in writing and invited to attend a disciplinary hearing with the right to be accompanied. Your client should provide copies of all evidence to the employee, informing them of the allegations against them and the possible consequences. If subsequent to the disciplinary hearing, your client is able to form a reasonable belief that gross misconduct has taken place then the employee may be dismissed without notice. This needs to be confirmed to them in writing along with their right to appeal.
Even though an incident of gross misconduct may appear clear-cut, your client must conduct a fair investigation prior to dismissal and offer the chance to appeal any disciplinary decision. Failure to do so will increase the risk of an unfair dismissal claim.
