Gross misconduct is behaviour so serious that it breaches the fundamental trust between employer and employee, usually justifying immediate dismissal without notice. Examples include:
- Theft or fraud
- Violence or aggression
- Serious breaches of health and safety
It is important to note that what constitutes gross misconduct can vary depending on the specific circumstances of the case and the nature of the employment. It is usual to have a list of examples of gross misconduct in the company’s employee handbook or in the employment contract.
Procedural Fairness
To avoid unfair dismissal claims, employers must follow a fair disciplinary process. This typically involves:
- Investigation – conduct a thorough investigation to gather evidence and establish the facts.
- Disciplinary meeting – inform the employee of the allegations against them and give them an opportunity to explain their side of the story.
- Right to appeal – allow the employee to appeal the disciplinary decision.
The range of reasonable responses test
The “range of reasonable responses” test is a legal principle used in employment tribunals to determine whether a dismissal was fair. Essentially, it asks whether the employer’s decision to dismiss an employee falls within the range of responses that a reasonable employer could have taken in the same circumstances. Our Mr Elliot Hammer represented a client in the Employment Appeal Tribunal Don-Pevi v Royal Mail Group Ltd in which the issue of reasonable responses was considered.
Key Points to note include :
- Employer discretion – the legal test for a fair dismissal acknowledges that employers have a degree of discretion in managing their workforce.
- Reasonableness – the tribunal must decide if the employer’s decision was reasonable, not whether it was the best decision.
- Band of responses – there is often a range of potential actions an employer could take in response to misconduct, from a warning to dismissal.
- Case specific – the reasonableness of a decision depends on the specific facts of the case, including the nature of the misconduct, the employee’s history, and the size and nature of the business.
- Factors Considered by Tribunals – when applying the range of reasonable responses test, tribunals will consider various factors, including the seriousness of the misconduct, employee’s length of service and disciplinary record, size and nature of the business, employer’s disciplinary policy and the fairness of the investigation and disciplinary process
Points to Note for Employers
- Don’t think you are legally safe if the employee has not worked for you for 2 years – an employee cannot generally claim for unfair dismissal if they do not have 2 years continuous employment under current rules. However, there is no 2 year rule for discrimination claims or breach of contract claims. Consequently, employers are well advised to still follow due process before dismissing employees for misconduct who have now worked for them for 2 years.
- Evidence is key – ensure you have sufficient evidence to support the allegations of gross misconduct. Evidence of investigation was considered in this case by Branch Austin McCormick.
- Consistency – treat all employees fairly and consistently.
- Documentation – maintain clear and accurate records of the disciplinary process.
- Legal advice – seek legal advice if you are unsure about the steps to take. Contact the employment team at Branch Austin McCormick LLP.
Points to Note for Employees
- Understand your employer’s policies – familiarise yourself with your employer’s disciplinary policy.
- Attend meetings – participate in disciplinary meetings and explain your side of the story.
- Seek support – consider seeking advice from a trade union or employment lawyer if you are facing dismissal.
- Appeal – exercise your right to appeal if you disagree with the decision.
Important: This article provides general information and does not constitute legal advice. It is essential to seek professional legal advice for specific circumstances.
