With the recent case of Boardman v Nugent Care Society & Anor being handed down from the Employment Appeal Tribunal, this post will address the topical point of when gross misconduct (and equally when it cannot) be deemed to be unfair dismissal (“gross misconduct unfair dismissals”). This post will therefore look at the following five issues:

  1. What is unfair dismissal?
  2. What constitutes misconduct?
  3. What constitutes gross misconduct?
  4. When can an employee be dismissed for gross misconduct?
  5. How do I know when a gross misconduct unfair dismissal has occurred?

What is unfair dismissal?

An employee has the right not to be unfairly dismissed from their employment by virtue of s.94 of the Employment Rights Act 1996. To qualify for these rights the employee (prior to April 2012) must have been employed for more than one year by their employer and must have a contract of service (a rather complicated point that we won’t go into here).

If an employee is dismissed from their employment (and they qualify for their rights) then their employer must advance a potentially fair reason for their dismissal under s.98 of the Employment Rights Act 1996. There are five potentially fair reasons:

  1. Misconduct
  2. Capability
  3. Redundancy
  4. Illegality
  5. Some other substantial reason

Misconduct (as we’re looking at gross misconduct unfair dismissal) is the “potentially fair reason” that we are going to concentrate on here.

What constitutes misconduct?

The employer must show that the reason that they dismissed the employee was misconduct and that the treatment that they were dismissed for could potentially constitute misconduct. So, what constitutes misconduct? Common sense and precedent suggest a number of actions by an employee that could be deemed misconduct – aggressive behaviour, swearing, vandalism or theft are obvious ones. The employer might also have specified what may constitute “misconduct” in the contract of employment, staff handbook or disciplinary procedure.

Normally (unless the employee has had previous unexpired warnings on their file) a simple incident of misconduct (for example, a shouting match between two employees relating to their job) doesn’t justify dismissal. However, if the employee has previous warnings for serious or similar offences, or the incident of misconduct is so serious as to justify dismissal for their first offence, the employee may legitimately be dismissed for misconduct. If the incident is particularly serious it may be deemed to constitute gross misconduct, allowing the employer to terminate the contract of employment without notice. If the incident does not constitute gross misconduct then the employer must allow you to serve your period of contractual or statutory notice (unless you’re paid in lieu).

What constitutes gross misconduct?

Gross misconduct occurs when an act that an employee carries out is so serious in itself or its consequences that it may warrant dismissal for a first-time offence. As notes above, incidents such as fighting, being drunk at work, stealing from your employer or sexual impropriety may justify a dismissal for gross misconduct. Your employer will normally have rules (in your contract of employment or elsewhere) that determines what constitutes gross misconduct and there may or may not be an exhaustive list. There should be clear guidance as to what constitutes gross misconduct – a failure to specify this may lead to a gross misconduct dismissal being deemed unfair (and therefore a “gross misconduct unfair dismissal”).

When can an employee be dismissed for gross misconduct?

An employee can be dismissed for gross misconduct if:

  1. The act of misconduct is so serious as to render dismissal a reasonable sanction
  2. Where the disciplinary rules specify that the particular conduct engaged in can lead to the sanction of dismissal
  3. Where the employee has made it clear that they won’t change their behaviour if they’re given a warning

How do I know whether a gross misconduct unfair dismissal has occurred?

You should look at the facts of the case to determine whether a gross misconduct unfair dismissal has occurred, including:

  1. What have you been dismissed for (let’s say, for the sake of argument, fighting)?
  2. Are there disciplinary rules prohibiting fighting?
  3. Would employees normally be dismissed for fighting?
  4. Have you demonstrated that you’re sorry that you engaged in fighting and are willing to change your behaviour?

Here are some examples where, using the example of fighting, a dismissal may be deemed to be a gross misconduct unfair dismissal:

  1. Where you weren’t actually fighting but have been dismissed for it
  2. Where a proper investigation wasn’t carried out into the incident
  3. Where there were no disciplinary rules that expressly prohibited fighting
  4. Where employees wouldn’t normally have been dismissed for fighting (for example in highly stressful environments).

Redmans Solicitors are London employment lawyers that offer employment law advice to employers and employees. They are specialist no win no fee unfair dismissal solicitors and also undertake constructive dismissal claim


Redmans Solicitors are a law firm based in Richmond, London. They are specialist employment lawyers and represent both employers and employees in the Employment Tribunal

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