14th May 2019
What is gross misconduct?
You might assume that what constitutes gross misconduct would be a matter of common sense; fraud, theft, physical violence, bullying or harassment of colleagues, gross subordination, serious or criminal acts of misconduct outside of work which bring the employer’s organisation into disrepute and serious breaches of health and safety are all examples of gross misconduct. They are often listed as gross misconduct in employer’s staff handbooks and disciplinary policies.
The difference between gross and "ordinary" misconduct – notice pay.
However there is an important difference between gross misconduct and “ordinary” misconduct which is sometimes misunderstood and often goes unchallenged. Gross misconduct is either deliberate wrongdoing or gross negligence by the employee which is so serious that it fundamentally undermines the relationship of trust and confidence between employee and employer. Gross misconduct entitles the employer to dismiss the employee without notice (known as a summary dismissal).
Dismissing without notice or pay in lieu of notice can be a considerable saving to the employer or a considerable loss to the employee, depending on the individual’s notice entitlement. The minimum statutory notice pay is one week for each full year the employee is employed, up to a maximum of 12 weeks. Some employees have a larger contractual notice entitlement.
Whether an act of misconduct is serious enough to entitle the employer to summarily dismiss is ultimately a question for an Employment Tribunal based on the facts of the case. For example in Western Recovery Services –v- Fisher the employee was dismissed summarily for gross misconduct for failing to check that one of the firm’s vehicles was in a safe condition. The Tribunal found that the employee had been fairly dismissed for misconduct but that the conduct was not serious enough to amount to a gross misconduct and he was therefore entitled to his notice pay. The Tribunal awarded him damages for lost earnings during his 4 week notice period. If his notice period had been longer, say 12 weeks, his award for damages would have covered 12 weeks.
If you are an employer intending to dismiss for gross misconduct, or you are an employee who has been so dismissed, contact us for advice on whether a gross misconduct dismissal really was justified in those circumstances or whether notice, or pay in lieu of notice, should have been given.
An employer’s “reasonable belief” in the misconduct – the “Burchell” Test
Another misconception about gross misconduct is that employees cannot be dismissed if their employer cannot produce indisputable evidence of their wrong doing. This mistake is often made by employees facing a criminal trial at some point in the future and their employer decides to dismiss them before their criminal case is heard.
In misconduct dismissals an employer is expected to comply with the so called “Burchell” test, named after the case of British Home Stores v Burchell. A dismissal for misconduct (either gross or ordinary) will only be fair if, at the time of the dismissal, the employer:
- Believed the employee to be guilty of misconduct.
- Had reasonable grounds for believing that the employee was guilty of the misconduct.
- Had carried out as much investigation as was reasonable.
An Employment Tribunal must also decide whether the employer's decision to dismiss the employee fell within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted.
This means that even if evidence emerges at a later date that the dismissed employee was innocent of the alleged wrongdoing, the dismissal will still be fair based on the reasonable belief the employee held at the time of the dismissal.
Emerging Areas of Unfair Dismissal Law – Social Media Dismissals
What is considered unacceptable conduct is likely to change over time. Many employers now list in employment contracts or staff handbooks the use (or misuse) of social media while at work as being an example of misconduct. Case law on this type of misconduct is slowly emerging. In Preece v J D Wetherspoon PLC a Tribunal held that dismissal was a fair sanction for a pub manager who had a conversation complaining about two of her customers on Facebook while she was still at work. A key finding was that the employer had a well drafted policy which reserved its right to take disciplinary action against any employee whose blog might be found "to lower the reputation of the organisation, staff or customers".
From the social media cases that have been heard at Tribunal or the Employment Appeal Tribunal so far, some have been held to be fair dismissals for gross misconduct, some for ‘ordinary’ misconduct and some unfair dismissal. One of the key questions that the Tribunal will look at is the reputational damage caused by the social media posting. A consistent finding of Tribunals is that employees have no expectation to the right of privacy when using social media because, even when using privacy settings, their postings can be copied and forwarded on to others.
Culpability From Misconduct Not Clear Cut Where Employee Mentally Ill
In Burdett -v- Aviva Employment Services Limited the Employment Appeal Tribunal (EAT) considered whether an Employment Tribunal had been correct to hold that an employee with a paranoid schizophrenic illness had been dismissed fairly for gross misconduct and that the dismissal was objectively justified in the context of discrimination arising from disability. The EAT held that the Tribunal’s decision that the employee was fairly dismissed for gross misconduct when he sexually assaulted female colleagues after discontinuing his medication without medical advice was unsafe. The admission to the sexual assault and discontinuance of medication had been treated by the employer as an admission of guilt to gross misconduct. However gross misconduct requires culpability and the EAT found that it was not clear from the Tribunal’s reasoning whether it had addressed the issue of the employee’s culpability, in particular the effect of the employee’s mental illness on that concept. In finding that the dismissal was the right sanction the EAT held that the Tribunal had failed to take the employee’s mitigating circumstances into account and wrongly assumed that dismissal automatically fell within the band of reasonable responses following a finding of gross misconduct.
With regard to discrimination arising from disability, the EAT held that the Tribunal had erred in finding that a dismissal was a proportionate means of achieving Aviva’s legitimate business aim of setting appropriate standards of conduct within the workplace. The Tribunal had failed to carry out the balancing exercise required when considering objective justification.
On the other hand the EAT decision in Hensman -v- Ministry of Defence raised similar issues in the case of an employee suffering from Asperger’s raised similar issues yet the outcome was different. In that case protection of other employees was viewed as paramount.
The key points to take away from this apparently conflicting case law is that gross misconduct requires culpability on the part of the employee and when dealing with a mentally ill employee this aspect requires careful consideration by an employer. In addition dismissal may not be the appropriate sanction in such cases and the employer should take the mitigating circumstances of the employee’s mental health into account alongside business needs.
Contact Deborah Scales on either 0115 958 7444 or email@example.com for specialist advice if you find yourself dealing with this highly complex area of law.
- Deborah Scales - Employment Solicitor
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