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Misconduct and Gross Misconduct

Helping you assess this key distinction

Identifying as early as possible whether conduct issues are sufficiently serious to constitute gross misconduct is important when considering an appropriate sanction. Getting this wrong can lead to employers facing claims for unfair dismissal.

Sometimes in the course of an employment relationship issues arise and employees act in ways which are not acceptable. For example an employee may be persistently late for work or be involved in an argument or physical fight with another employee. Conduct such as this is generally termed misconduct, however it is not possible to give a blanket definition to such issues given that some forms of misconduct may be relatively minor whilst others may be very serious with consequences under criminal law.

Where the misconduct of an employee is at the most serious end of the spectrum this may constitute gross misconduct and the employer is likely to be able to fairly dismiss the employee without notice.

Examples of issues which may constitute gross misconduct include physical violence, theft or fraud. Often an employer’s disciplinary policy will contain a non-exhaustive list of what it considers to be gross misconduct; however this will not be determinative and each case should be considered and dealt with on an individual basis. There may be situations where cumulative acts of misconduct in their totality constitute gross misconduct.

Often it is difficult to assess whether an act or acts of misconduct are gross misconduct and this can result in disputes between employees and employers and unfair dismissal claims being brought.

Dismissing an employee without notice for gross misconduct may potentially be a fair reason for dismissal, whereas for lesser misconduct it would almost certainly be unfair to dismiss an employee without providing any prior warnings. It is always essential where there is evidence of misconduct that a fair and thorough investigation is carried out. If there is enough evidence to commence disciplinary action the allegations against the employee should be clearly explained in an invitation to disciplinary hearing letter, including stating what the potential sanction may be.

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