Gross misconduct is behaviour or action which is so serious that it justifies an employer dismissing the perpetrator without notice or pay in lieu of notice. This is known as summary dismissal.
For employers, it’s important to recognise the type of conduct that meets this threshold. If the misconduct is not sufficiently serious to be considered gross misconduct, it could provide the basis of a claim for unfair dismissal.
In this guide, we look at common examples of sackable offences which generally constitute gross misconduct.
Gross misconduct & sackable offences
When an employee’s job is terminated without a notice period or pay in lieu of notice, it is known as summary dismissal. In contrast, in a typical dismissal, an employee will either be allowed to work their notice period or would be compensated for it through pay in lieu of notice (PILON)
If an employee has been continually employed for at least a month but less than two years, they are normally entitled to a minimum of one week’s notice following their dismissal. They will be entitled to two weeks’ notice if they have served for at least two years, with an extra week for each consecutive year of service, up to a total of 12 weeks. In many circumstances, however, the employment contract may provide for a longer notice time.
In circumstances when summary dismissal is justifiable, the employee will not be entitled to work out or be compensated in lieu of their statutory or contractual notice period.
Dismissing someone for gross misconduct
Employers’ justifications for summary dismissal usually revolve around the employee’s egregious behaviour. This is an act which has the effect of destroying trust and confidence between the employer and employee, making it impossible for the working relationship to continue.
The employer has the right to treat gross wrongdoing by an employee as a fundamental breach of the implied duty of mutual trust and confidence. This allows the employer to justify bringing the employment contract to an end without having to comply with any statutory or contractual notice obligations.
When summarily dismissing an employee, however, a lawful disciplinary procedure must be followed to ensure that the dismissal is legal. This means that, in most cases, an employer cannot dismiss an employee “on the spot,” but must first investigate all of the circumstances surrounding any claim of gross misconduct, including any mitigating considerations, before making a dismissal decision.
Examples of sackable offences
The following are common circumstances that can amount to gross misconduct and may be used to justify summary dismissal.
At work, physical violence or threats of violence are common. At work, aggressive or intimidating behaviour is common. At work, dangerous horseplay is common.
- Inappropriate or harmful workplace behaviour
- Harassment or discrimination against another employee
- Workplace insubordination
- Serious violations of health and safety standards
- Intoxication at work caused by alcohol or drugs
- Possession of drugs or use of drugs at work
- Purchasing or selling narcotics on work premises
- Workplace theft, fraud, or dishonesty
- Misuse of corporate assets
- Damage to company property
- Establishing a competing business
This list of sackable offences is by no means exhaustive. An employer may have a written policy or set of regulations in place that includes particular restrictions against various sorts of misconduct based on their industry or business. In the finance business, for example, IT-related actions, such as disclosing a password, are frequently considered severe misconduct. The setting in which the act occurs might also influence what constitutes gross misconduct.
In practice, it is important that each case is handled on its own merit and the facts of the matter are established before a decision is made as to disciplinary action.
In most circumstances, a single act of gross misconduct will be enough to justify summary dismissal. However, the cumulative effect of a series of acts demonstrating a pattern of serious misbehaviour may justify dismissal without notice or compensation in lieu in some cases. Even if the employer is unable to identify a single act that constitutes gross misconduct, this can be done.
Dealing with gross misconduct
To prevent an unfair dismissal claim before a tribunal, an employer must not only have a lawful basis for the dismissal, but also demonstrate that they acted reasonably in all circumstances. This means that an employee cannot ordinarily be dismissed without a thorough investigation and fair disciplinary procedure first taking place.
Employers should have a formal disciplinary process in place that is to be followed in the event of a workplace incident and allegations of gross misconduct. This procedure should, as a minimum, follow these key steps:
- Conduct an immediate and thorough inquiry to determine the facts of the case. This should include gathering statements from the employee as well as any witnesses, as well as analysing any other evidence, such as documents, images, or video and audio recordings. The investigation must be objective, which may require bringing in an external investigator to ensure impartiality. To evidence the reasonableness of your decision-making, you should keep a documented record of the disciplinary process, including the reasons for dismissal.
- Consider if the employee should be suspended until the conclusion of the investigation and any final decision. You should only suspend an employee if there are no other options, and you should notify the employee in writing of your decision to suspend and explain that this is not a disciplinary consequence. Unless their employment contract specifies otherwise, you must suspend them on full pay.
- Invite the employee to a disciplinary hearing where they should be given the opportunity to share their version of events and any mitigating circumstances. The employee must be notified of the hearing in writing as soon as practicable, with any evidence being disclosed in advance of the hearing so that they can prepare their case. They must also be notified of their entitlement to be accompanied to the hearing if they make a reasonable request.
Notifying the employee of the decision
Notify the employee in writing of your final decision, including your reasons and if any dismissal will take effect immediately. You must also inform the employee of their right to appeal the decision.
If the decision is made to dismiss the employee summarily without notice, include the following information as a minimum:
- Confirm the decision for summary dismissal
- Confirm the date of termination
- The reasons for dismissal
- Provide an explanation of why the dismissal was made without notice and without pay in lieu of notice
- The nature of the gross misconduct that led to the dismissal decision
- The manner in which the misconduct was investigated
- The factual findings reached as a result of the investigation
- The employee’s entitlement to appeal this decision
- Outline of the appeals process
You may also need to deal with practical matters, such as returning business property and, where applicable, informing the employee that any post-termination confidentiality responsibilities and restrictive covenants under their employment contract remain in effect.
The role of the disciplinary policy
Employers are not required by law to have a specific summary dismissal policy in place, but they must have a written disciplinary and dismissal procedure that outlines the grounds on which an employee might be terminated properly.
You can help to avoid workplace misconduct by clearly defining the sorts of behaviour that may result in disciplinary action, including what constitutes gross misconduct, in your disciplinary procedure or other relevant policy document. You may also use this to show how fair you are when it comes to misconduct and summary dismissal.
Any disciplinary procedure in the workplace should, at the very least, follow the ACAS Code of Practice. This provides the fundamental principles of fairness that apply in the vast majority of circumstances. It should also be easily accessible to all employees such as in their employment contracts, staff handbooks, or any staff intranet site.
Legal risks for employers
Employers risk claims for unfair or wrongful dismissal for dismissing employees without lawful grounds or without following a fair disciplinary procedure.
Although there is no qualifying time of service for making a claim for wrongful dismissal, an employee can only claim unfair dismissal if they have been employed for at least two years, unless the grounds for dismissal are deemed automatically unfair.
Sackable offences & gross misconduct FAQs
What are sackable offences?
Sackable offences relate to conduct at work that is serious enough to justify dismissal.
What are the 5 fair reasons for dismissal?
The five fair reasons that may be relied on to justify fairly dismissing an employee are: capability; conduct; redundancy; where continued employment would contravene the law; or for some other substantial reason.
What are examples of gross misconduct?
Examples of gross misconduct in the workplace can include violence, threats of violence, theft or fraud, misuse of company property, damage to company property, serious breaches of health and safety at work, intoxication or indecent behaviour, and serious insubordination.
Can I be sacked without a written warning?
It is possible to be sacked without a written warning in cases of gross misconduct. However, the employer should conduct an investigation and follow a fair disciplinary process before making a decision to dismiss.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.