Most (small) business owners will be familiar with the concept of gross misconduct. The term describes employee behaviors that can justify immediate termination of their contract. While gross misconduct can take a number of different shapes, most will, in some form or the other, constitute a serious breach of company policies. What constitutes gross misconduct is an irreparable disruption of the employee-employer relationship. Gross misconduct can have serious consequences, such as instant termination of the employment without paying the employee any pay in lieu of notice.

What constitutes gross misconduct?

General misconduct usually describes employee non-reasonable behaviour not immediately resulting in irreparable damage to business or employee-employer relationships. Misconduct can range from not going to work on time to not performing well. Gross misconduct, on the other hand, describes a behaviour or an act that puts the employer in danger of financial or reputational loss. It can also mean any act having a negative effect on the workplace and other team members. This can include eg harassment, bullying and assault or the theft of sensitive company information. Of course, more extreme behaviour, such as violence or the possession of illegal substances are also classified as gross misconduct.

Define what gross misconduct is

Should you get into a situation where one of your employees gets dismissed with immediate effect due to gross misconduct, it is crucial that you have defined parameters for gross misconduct. The employee in question can appeal via tribunal or request a disciplinary hearing which means you need to have a solid case for dismissing the staff member. It is advisable to define the parameters in a disciplinary code that is referred to in the employment contracts. If a behaviour or act causing an employee to be dismissed is clearly outlined to constitute gross misconduct in your company’s disciplinary code, you have a strong defence.

Managing a gross misconduct incident

Should there be an allegation of gross misconduct against one of your employees, it is advisable to suspend the staff member in question (on full pay) and carry out a thorough investigation and take witness statements. Ensure the employer in question is aware that the suspension itself is not a punishment, but necessary to guarantee a fair investigation and avoid unfair dismissal.

The investigation process consists of gathering facts. Should you identify any facts supporting the dismissal for gross misconduct you should instigate a disciplinary procedure in the form of a hearing. Of course, the employee has the right to representation and legal advice. Be sure to explicitly state this in your invitation. Plan the hearing as follows:

• Ensure there is a chairperson and an attendee taking minutes
• Ensure all evidence to support or not support instant dismissal is set out clearly
• Ensure the employee has time to respond to the allegations
• Ensure the final decision is only made once the hearing is over