Gross misconduct is a term that’s often used incorrectly or casually by managers when employees have only done something minor.
So, what exactly is gross misconduct? The truth is, there’s no strict legal definition of what constitutes gross misconduct and it’s up to your organisation to decide.
In this guide, we’ll explain what gross misconduct is in the eyes of the law, what could be considered gross misconduct and how you can deal with it in your workplace.
What is gross misconduct?
It can be hard to define gross misconduct as it doesn’t have a strict legal definition, but it relates to the most severe breaches of workplace behaviour that are serious enough to potentially justify instant dismissal (called summary dismissal).
The Government describes gross misconduct as including things like theft, physical violence, gross negligence or serious insubordination. But it can also refer to staff behaviour that’s so serious it destroys the relationship between you and the employee, making it impossible to continue.
Your organisation should decide what you consider gross misconduct and make this information available to all employees in a company disciplinary policy and/or your employee handbook.
Gross misconduct and the law
There’s no strict legal definition of gross misconduct. However, we can get an idea of gross misconduct in the eyes of the law by looking at how it has been treated at employment tribunals.
In Dunn & Anor v AAH Limited [2010], the Court of Appeal upheld the dismissal of a former finance director of AAH Pharmaceuticals for gross misconduct due to his failure to inform the company’s German-based parent about potential fraud involving a UK supplier.
The director argued that his actions were an error in judgement rather than wilful misconduct, but the court rejected this, stating that the director had a heightened duty to uphold risk management standards. Therefore, his inaction was a severe breach of trust and confidence fundamental to his role, justifying the termination of his employment contract.
More recently, in Hewston v Ofsted [2023], the appeal court overturned the employment tribunal’s decision to dismiss a school inspector for brushing water off a child’s head and shoulder. They found that Ofsted hadn’t adequately informed the inspector, through policy or training, that such minor contact could result in dismissal.
So it’s clear that, in the eyes of the law, gross misconduct is defined by actions that severely damage the trust, confidence or integrity essential to an employment relationship. However, you must make sure that you clearly warn employees about behaviours that might warrant immediate dismissal.
Together, these cases show that gross misconduct depends not just on the action itself but on the employer’s expectations, the employee’s awareness of those expectations and the context of the breach.
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 1996: 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 must comply with these laws to ensure you have conducted fair and reasonable investigations for gross misconduct and have sufficient evidence should your decisions be challenged in the future.
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 of 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?
There are occasions where gross misconduct can take place outside of the workplace. Provided you conduct a full and fair investigation into allegations of misconduct outside of work, and any findings are based on clear evidence of the employee’s behaviour, you may be entitled to take disciplinary action against them for gross misconduct.
What constitutes gross misconduct outside of work usually depends on the context. For example, where and when the behaviour took place and how serious the effects are, or are likely to be, on your organisation.
Examples of gross misconduct that can occur outside of the workplace include:
- Violence or sexual harassment towards a colleague or client at a work party
- A single instance of racist, sexist or homophobic abuse towards a colleague on social media
- Ongoing non-discriminatory bullying towards a co-worker on social media
- Disclosing trade secrets
- Misusing customer data
In cases where gross misconduct has occurred outside of work, you will need to ensure that the employee was made aware of expectations for behaviour both in and outside the workplace.
Ensure that you have clear policies and guidelines, including a social media policy, and provide training and awareness on the importance of maintaining professional conduct outside of work and what the consequences could be if they engage in inappropriate behaviour.
You should also make sure that you take a fair and consistent approach to monitoring and enforcing your policies about behaviour outside of work.
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
It’s crucial to get dismissal for gross misconduct right, as if it is mismanaged you could end up with claims of wrongful or unfair dismissal.
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 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 Head of Employee Relations
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.”
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 office@fitzgeraldhr.co.uk to find out more about how we can help.
