Managing gross misconduct

Menzies Law has seen enough gross misconduct cases to know that matters are not always clear-cut. Here we share our experience of such cases and our collective learnings from these.

- If as an employer you want to make employees realise how important it is to follow a rule, make sure it is written down.  It is certainly correct that ‘gross misconduct’ lists in staff handbooks are examples only. However, if your business has some very clear rules about things, then make sure they’re clearly stated somewhere.

- Just because you have acted one way in the past it doesn’t mean you have to exactly follow that path again. Whilst consistency is a benchmark in employment law cases, there is always room for some flexibility if circumstances dictate. Someone could be guilty of gross misconduct for shouting obscenities at their supervisor. However, a long-serving employee who happens to be going through a very difficult bereavement for example, could be still be guilty of gross misconduct but given a final written warning instead. This does not create a ‘precedent’.

- Keep an open mind during investigations. Too often we see investigations whose only purpose seems to be prove misconduct rather than a genuine fact-finding exploration. Closed or ‘cross examination’ style questions to the witnesses are the big give-away here.

- Few employers relish sacking an employee for gross misconduct. That being said, we have known employers who just want to get rid of someone, trying to come up with a case that will stick.

- Don’t jump on any misconduct just because you are trying to dismiss someone.  We often receive calls from employers believing they have ‘got’ someone - only for us to advise that we don’t see a case of gross misconduct being made out. If you really want someone to leave your organisation have a grown-up discussion or a protected conversation instead.

- Make sure your employee is aware of the evidence against him or her. You do not necessarily have to hand over everything, particularly in a sensitive case or where confidentiality is an issue. However, if you make your findings on information you have seen but your employee hasn’t, there is a clear path to a finding of unfair dismissal.

- The ACAS Code is excellent - but it is not an instruction manual. It is right to be mindful of the Code because failure to adhere to it can see an uplift in compensation, but it does provide for flexibility. If it is fair and reasonable to follow a particular route, make sure you let the employee know why you are doing it.

- Be prepared to be flexible during hearings. We’ve seen cases lost where an employer has refused a short adjournment to an employee. We know that can be felt to be a delaying tactic but being as flexible as you can will be helpful if you end up defending an Employment Tribunal claim.

- You can short-circuit your processes if the employee has less than two years’ service. But do so with care. Yes, they cannot bring a claim for unfair dismissal due to lack of service. But, do you want to have a two-tier organisation where only those with sufficient service get a ‘fair hearing’? Also without due process you might miss other ‘day one’ claims that might be lurking - discrimination, whistleblowing, health and safety detriment.

- A ‘breakdown in trust and confidence’ will not always equal gross misconduct. Employment Tribunals have ‘wised up’ to the employers who use this catch all phrase to justify a gross misconduct dismissal. You may no longer trust your employee because they messed up a sales pitch, but again - how about a grown up chat or protected conversation instead?