Gross misconduct – the practicalities

Employment law, in many (but not all cases) comes down to 3 quite basic issues :-

1. what does the contract of employment say about a given situation, if anything ?

2. a common sense view on an issue which has arisen

3. from the employer’s perspective, complying with good and thorough procedure, including investigation, independent decision making and the right of appeal.

A common sense view on gross misconduct

The above 3 steps are paramount when looking a potential gross misconduct situation. Firstly, a good and well written contract of employment will provide examples of what might be gross misconduct, and there are some obvious examples, such as fighting in the workplace, theft, being intoxicated and so on.

But an employer should not necessarily worry if a particular situation is not covered by the contract, because there are a whole range of things which can constitute gross misconduct and the test that the employer needs to satisfy is that he, she or they dealt with the issue within “a range of reasonable responses” and this range can be quite wide. The common sense viewpoint is simply, does the employee’s action, looked at objectively, and if investigated sufficiently to give the employer an honest belief that the act or omission was that of the employee in question, go the heart of the contract ? Is it such a serious act that it destroys the employment relationship ? Employers who follow these common sense rules are unlikely to fall foul of unfair dismissal on the merits of dismissing.

In fact, more employers lose cases in the Tribunal because of failing to comply with either their own contractual disciplinary process or that of acceptable natural justice. No matter what the employee may have done, he or she must still be afforded the right to :-

1, a fair investigative process

2. to have forewarning of the allegations before any disciplinary hearing and sight of evidence generally

3. the right to be accompanied to a disciplinary hearing by a colleague or Trade Union representative

4. the chance to state his or her case

5. the right to be advised formally of the outcome

6. an opportunity to appeal the decision


In summary, common sense on what constitutes gross misconduct, consistency of approach, check the contract. As an employer, focus on process, again check the contract process and also look at the latest ACAS guidelines.