A common question we get at Redmans relates to what actually constitutes gross misconduct in the workplace. What “gross misconduct” is appears to be misunderstood by employees and we’ll therefore take a look in this post at what constitutes misconduct and gross misconduct and, further, what types of misconduct can be classed as “gross misconduct”. We’ll also look at a few examples.
- What is misconduct?
- What is gross misconduct?
- Examples of gross misconduct
What is misconduct?
Misconduct is defined as “unacceptable or improper behaviour”. If allegations of misconduct in the workplace have been levelled at you then this is a particularly serious matter – misconduct is one of five potentially fair reasons for dismissing an employee (the others being incapacity, illegality, redundancy and retirement). Your employer can therefore, if the seriousness of the allegations warrants it, dismiss you if they find that you are guilty of misconduct.
What is gross misconduct?
If you’ve been accused of “gross misconduct” in the workplace then this is particularly serious – gross misconduct generally includes the most serious offences, such as theft or violence. For an action (or omission to act) to be classed as gross misconduct it has to be deliberate and intentional on the part of the employee – it has to either be deliberate wrongdoing or gross negligence at work. A list of allegations which could potentially constitute gross misconduct can be found below. However, just because your employer states that an act constitutes gross misconduct this doesn’t necessarily mean that it does actually amount to gross misconduct. An Employment Tribunal will look at the facts of the matter and conclude whether the conduct itself could reasonably be deemed to constitute gross misconduct and, also, whether the employer had a reasonable belief that the act complained of constituted gross misconduct. In order for the conduct complained of to be gross misconduct it must:
- Be so serious that it goes to the root of the contract; and
- Be a deliberate and wilful breach of the contract or amount to gross negligence
If you’re found guilty of gross misconduct then your employer is entitled to terminate your contract of employment without notice. If your employer is considering whether to dismiss you then they must bear the following in mind (among other things):
- The nature of the act
- Your past employment record
- Your length of service
- Whether you were provoked or stressed at the time
If your employer fails to carry out a fair procedure or make a reasonable decision to dismiss you then you may have a claim for unfair dismissal. You should contact a specialist employment lawyer to discuss your case, potentially a no win no fee unfair dismissal solicitor.
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Examples of gross misconduct
The following acts or omissions can generally be deemed to constitute gross misconduct (although whether they are depends on the specific facts of the case at hand):
- Theft (e.g. stealing from your employer)
- Violence (e.g. assaulting a work colleague)
- Refusal to obey instructions
- Misuse of computers
- Breach of the implied duty of loyalty (i.e. by setting up a business to compete with your employer)
- Some conduct outside of work (such as a criminal act