Everything You Need to Know About Gross Misconduct

Gross misconduct is one of those phrases that gets thrown around far too easily. We often hear managers use it in the heat of the moment, sometimes when the issue in question is actually fairly minor.

So, what does gross misconduct really mean?

The answer is that there isn’t a neat, one-line legal definition. The law doesn’t provide a fixed list. Instead, it’s down to each organisation to be clear about what it considers serious enough to amount to gross misconduct.

In this article, we’ll walk you through what gross misconduct means in legal terms, what kinds of behaviour might fall into that category, and how to deal with it properly and fairly in your workplace.

What is gross misconduct?

Gross misconduct can be difficult to pin down because, as we’ve said, there’s no strict legal definition. Broadly speaking, it covers the most serious breaches of workplace behaviour, the kind that could justify instant dismissal, also known as summary dismissal.

Government guidance tends to include examples such as theft, physical violence, gross negligence or serious insubordination. But it can go beyond a list of offences. Sometimes it’s about behaviour that’s so serious it breaks down trust completely, to the point where the employment relationship just can’t continue.

That’s why it’s important for your organisation to be clear about what you consider gross misconduct. These expectations should be set out in your disciplinary policy and included in your employee handbook, so everyone understands where the boundaries are from the outset.

Gross misconduct and the law

There’s no strict legal definition of gross misconduct. But we can get a good sense of how it’s viewed by looking at how employment tribunals and courts have treated it in real cases.

In Dunn & Anor v AAH Limited [2010], the Court of Appeal upheld the dismissal of a former finance director at AAH Pharmaceuticals. He had failed to inform the company’s German parent about potential fraud involving a UK supplier. The director argued this was simply an error of judgement rather than deliberate wrongdoing. The court disagreed. Because of his senior role, he had a heightened responsibility to manage risk properly. His failure to act was seen as a serious breach of trust and confidence, which went to the heart of his position and justified dismissal.

More recently, in Hewston v Ofsted [2023], the appeal court overturned a dismissal. A school inspector had been dismissed after brushing water off a child’s head and shoulder. The court found that Ofsted had not made it clear, through policy or training, that this kind of minor contact could lead to dismissal. In other words, the expectation hadn’t been properly communicated.

What these cases show is that gross misconduct is not just about what happened. It’s about how serious the impact was on trust and confidence, what the employee’s role required of them, and whether they were clearly aware that the behaviour could lead to dismissal.

In the eyes of the law, gross misconduct is usually behaviour that fundamentally damages the employment relationship. But as an employer, you must be clear about your standards and make sure employees understand where the line is. Without that clarity, even a serious situation can become legally risky.

Employment laws

While there isn’t a legal definition of gross misconduct, there are lots of employment laws that outline the rights and responsibilities of employers and employees:

• Employment Rights Act: The basic rights of employees, including the right to a fair disciplinary process and protection from unfair dismissal
• Acas Code of Practice: The minimum standard of fairness that workplaces should follow. Non-compliance can result in an uplift of 25% in tribunal compensation
• Equality Act 2010: Protects employees from discrimination based on age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation
• Data Protection Act 2018: Employers must ensure the confidentiality and security of sensitive information, and must handle this data in compliance with this law during disciplinary proceedings

You need to follow the correct legal process to make sure your investigation is fair, reasonable and properly documented. If your decision is ever challenged, you’ll need clear evidence to show that you handled the situation carefully and lawfully.

Examples of gross misconduct at work

If you’re trying to decide what constitutes gross misconduct in your organisation, here are a few common examples of gross misconduct in the workplace:

1.    Theft and/or fraud

As we saw in the Dunn & Anor v AAH case, theft or fraud, or even incorrectly reporting suspicions of theft or fraud, can be a fundamental breach of trust and of the employment relationship. Other examples are stealing company stock or falsifying expense claims.

2.    Violence or offensive behaviour

Acts of physical violence, or threats of violence, can be considered gross misconduct. Aggressive or intimidating conduct could also be gross misconduct, including physical bullying and harassment.

3.    Gross negligence

Gross negligence is an employee’s serious lack of care towards their duties or other people, even if not deliberate. This is another case where the damage to the working relationship and trust will play a part in whether an employee’s action is gross misconduct. Breaches of health and safety law could come under gross negligence.

4.    Serious insubordination

Serious insubordination is the refusal to follow instructions to such a serious extent that it breaks the trust between you and the employee. Again, you and your organisation will have to decide what counts as breaching trust to the point where the working relationship can’t continue.

Can gross misconduct take place outside of the workplace?

If you carry out a full and fair investigation into alleged misconduct that happened outside of work, and your findings are based on clear evidence, you may be entitled to take disciplinary action for gross misconduct.

Whether something amounts to gross misconduct outside of work will usually depend on the context. Where did it happen? When? Who was involved? And most importantly, what impact has it had, or could it have, on your organisation?

Examples might include:

• Violence or sexual harassment towards a colleague or client at a work event
• A single instance of racist, sexist or homophobic abuse towards a colleague on social media
• Ongoing bullying of a co-worker online, even if it’s not discriminatory
• Disclosing trade secrets
• Misusing customer data

If you’re dealing with misconduct outside of work, you’ll need to show that employees were clear about your expectations, both inside and outside the workplace.

That means having clear policies in place, including a social media policy, and making sure people understand what professional conduct looks like and what the consequences could be if they cross the line. Training and regular reminders can make a big difference here.

Just as importantly, you need to apply your policies consistently. Monitoring and enforcing standards around behaviour outside of work should be fair, proportionate and in line with how you treat similar cases across the business.

Common pitfalls when dealing with gross misconduct

Dealing with gross misconduct can be a challenge, but it’s important to get it right. If you don’t, you could end up having to pay compensation or even damage your organisation’s reputation.

Some of the most common pitfalls when dealing with gross misconduct include:

Not conducting a fair and impartial investigation

You must make sure that you have gathered all relevant information and evidence before taking disciplinary action, following a structured investigation process. The process should include:

• Reviewing documentation
• Interviewing witnesses
• Gathering physical or digital evidence

It’s a good idea to appoint a neutral party, such as an HR representative, so the disciplinary investigation is conducted impartially.

Unclear or non-existent policies and procedures

You must have clear disciplinary and conduct policies in place and communicate these effectively to your employees. If you don’t, an employment tribunal could find your investigation arbitrary and unfair.

Make sure your policies and procedures are clearly documented and accessible to your entire team. You should train staff on the conduct you expect and the consequences of misconduct during onboarding, then regularly hold refresher training sessions.

Review and update your policies regularly to ensure they comply with current legislation and best practices, as well as to make sure they continue to meet the values and mission of your organisation.

Inconsistent application of procedures

Another common pitfall of dealing with gross misconduct is not following established policies and procedures consistently. This can lead to allegations of bias or favouritism in an employment tribunal.

Always follow your procedures as outlined in your disciplinary policy, and document each step so there’s a clear record.

Poor documentation

You must document everything throughout the disciplinary process. Without proper records, you may struggle to defend your decisions if you’re challenged.

You should keep notes from interviews and disciplinary meetings, copies of evidence and reports explaining the decisions you made.

Not respecting employee rights

Employees have rights under the Acas Codes of Practice which set the minimum standard of fairness that workplaces should follow. If you don’t respect an employee’s rights, you could be taken to a tribunal.

Employees are allowed to be accompanied by a colleague or union representative during disciplinary proceedings. You must also clearly communicate their right to appeal, and ensure the appeal process is fair.

Mishandling gross misconduct dismissals

If dismissal becomes the outcome, you’ll need to handle it carefully and professionally.

You must provide the employee with sufficient notice of any disciplinary investigations and hearings. Follow your process correctly and give the employee a clear explanation of the reasons for dismissal, noting how your decision complies with your policy and legal requirements.

Gross misconduct and suspension

If there’s an allegation of gross misconduct against an employee, you may be able to suspend them while you carry out an investigation. Acas says that you should only suspend someone if it’s a serious situation and there’s no alternative.

You shouldn’t automatically suspend someone just because an allegation of gross misconduct has been made. You should gain initial information about what’s happened, who is involved and how serious it could be before you consider whether suspension is appropriate.

Suspension can be stressful for the employee and shouldn’t be used as punishment, so only suspend someone if there is no other option. Consider the wellbeing and mental health of anyone you decide to suspend.

Consider whether there are alternatives to suspension – could you arrange for someone to change their working pattern or hours temporarily? For example, you could:

• Change their shifts
• Arrange for them to work in a different part of the organisation
• Arrange for them to work from home
• Arrange for them to work from a different site
• Arrange for them to stop doing part of their job, for example if you’re investigating them for potential theft of stock
• Arrange for them to work away from customers if you’re dealing with a customer complaint
• Stop them using a specific system or tool, if you are investigating misconduct over instant messaging systems or remove access to a finance system if the allegation is around theft or fraud

If you do decide to make a temporary change, you should keep the reason confidential and discuss with the employee what you will tell colleagues about the change.

When you decide to suspend someone, you need to make sure that you can prove that it is a reasonable way to deal with the situation. To help you decide this, consider the following:

• What initial investigations have found so far
• How the wellbeing and mental health of the person under investigation could be affected by suspension
• What the risks are if you don’t suspend the person, for example, the risk to other colleagues, your organisation or the investigation
• How serious those risks are
• Whether there are any alternatives to suspension you could use

If you decide not to suspend the person initially, you can still consider suspension later if circumstances change as the investigation progresses.

How to deal with gross misconduct: best practice

When an allegation of gross misconduct is made against the employee, it’s important to follow a clear and fair process from start to finish:

1.    Respond immediately

Responding immediately doesn’t mean dismissing immediately. However, you should consider whether you need to suspend the employee as we discussed in the section above. Make it clear that this is not a disciplinary action and it will not affect the outcome of the disciplinary process.

2.    Notify the employee

Tell the employee about the allegations made against them in writing, and explain the process that will follow.

Initiate a formal disciplinary process with your HR representative and relevant managers.

3.    Start documentation

Record everything. Document initial observations, witness statements and any other evidence or relevant information.

4.    Conduct a fair and impartial investigation

Investigate the allegations made and gather evidence. It’s a good idea to cross-reference with records of any past similar cases of gross misconduct in your organisation, so you can ensure that you are acting fairly and consistently.

You must notify the employee of the investigation as soon as possible, but you are able to delay notifying them if you have reasonable concerns that they may impact the investigation – for example, if you are worried they may try to influence witnesses.

5.    Gather evidence

Collect any physical evidence relevant to the investigation and securely store any digital evidence, ensuring it’s time stamped. Gather any relevant documentation, such as performance reviews or attendance records.

If you need to interview witnesses, record them through written notes or consensual audio recordings. Make sure you get signed statements from them. You should also record any interviews with the accused employee.

Next, compile a report that details the assessment process, your findings and any conclusions you have drawn. It should be supported by the evidence you’ve gathered.

6.    Invite to a disciplinary hearing

If your investigation shows there’s merit to the allegations, you will need to invite the employee to a disciplinary hearing in writing.

You should state the nature of the allegations of gross misconduct against them and the potential outcomes if gross misconduct is found. You should then provide them with all the evidence you’ve gathered, and tell them the date, time and location of the hearing. You must give them enough notice to allow them to prepare their case.

7.    Conduct a hearing

The disciplinary hearing process must be fair, thorough and confidential. There are a few steps in the disciplinary hearing process that you need to follow:

Select a hearing panel

Ensure the panel members are impartial and are trained in conducting disciplinary hearings. They are typically a senior manager or HR representative who has not been involved in the initial investigation.

Allow employee representation

Make sure the employee knows about their right to be accompanied by a colleague or union representative, who can provide support and contribute to the discussion to help present the employee’s case.

Ask questions

Prepare questions in advance so you can explore the evidence that has been collated. The employee must have the opportunity to fully respond to all of the evidence against them.

Keep records

You must keep accurate notes of the hearing to go with the other records you’ve kept during investigations. This will be crucial if your decisions are questioned at an employment tribunal in the future.

Make a decision

The panel should deliberate in private to reach a decision and communicate this to the employee verbally and in writing as soon as possible.

The panel should consider the severity of the misconduct and the employee’s history before making a decision. The entire decision-making process should be documented and provide evidence in support of the decision. 

Possible disciplinary actions

There are lots of possible outcomes of a disciplinary hearing depending on what the panel find. The most serious is dismissal, but if gross misconduct is not found, there are other actions the panel can take for more minor indiscretions:

• Verbal warning: If the misconduct isn’t severe or is a first-time offence, a verbal warning can be issued and noted in the employee’s file
• Written warning: For more serious misconduct or if minor misconduct continues after a warning
• Final written warning: For serious misconduct that falls short of gross misconduct, or when previous warnings have been disregarded

If you do establish gross misconduct and therefore decide to dismiss, you will need to follow a fair dismissal procedure:

• Review the evidence: There should be substantial evidence of gross misconduct to dismiss someone, and the evidence must be carefully documented
• Final disciplinary hearing: If you need to, conduct a final hearing to give the employee a last chance to present their case
• Notice of dismissal: This written notice should state the reasons for dismissal, the evidence considered and the date of the termination of the contract
• Right to appeal: Inform the employee about their right to appeal the dismissal, outlining the appeal process and the timeline for submitting an appeal
• Final pay: Make sure the employee receives their final pay, including any accrued holiday pay
• Exit interview: If appropriate, conduct an exit interview and take back any company property, revoking access to all systems and company premises

Advice from our Director of People Services (Specialist Expertise)

Misconduct or gross misconduct?

“The difference between misconduct and gross misconduct comes down to severity and impact. Misconduct involves less serious infractions (like lateness or rude behaviour) that can typically be addressed with corrective measures such as warnings or additional training. Gross misconduct, on the other hand, involves actions so severe that they shatter the trust between employer and employee, often leading to immediate dismissal.

Whilst misconduct may give employees a chance to correct their behaviour and grow, gross misconduct crosses a line that no organisation can afford to ignore.”

Emily Hunter, Director of People Services (Specialist Expertise)

How we can help

The process behind gross misconduct allegations can be long and arduous and take its toll on everyone involved. At Fitzgerald, we can support you with all aspects of employee relations. Contact our team on 0330 223 5253 or connect@fitzgeraldhr.co.uk to find out more about how we can help.

Frequently Asked Questions about Gross Misconduct at Work

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