|
Ask Employment Law |
|
|
|
|
|
|
Remember: There is no substitute for legal advice on the actual
situation you find yourself in. The information posted on this site is for general
information only, is based on |
|
|
|
|
|
|
|
Question: |
What is ‘Gross Misconduct’? |
|
|
|
|
Answer: |
Most
people would feel that they know it when they see it. However gross
misconduct is misconduct by the employee so serious that it completely
undermines the employer’s trust and confidence in the employee to perform
his/her duties. In other words it has to be pretty serious. When gross
misconduct is found (after a full and fair disciplinary procedure), the
breach is considered so serious as to bring the employment relationship to an
end summarily without notice. How gross does
something have to be for it to amount to gross misconduct? In Dunn v AAH
Ltd [2010], the Finance Director and MD were dismissed for failing to follow
company procedures to report significant risk issues to the parent company,
including fraud, which they had became aware of. The Court of Appeal held
that these failures were not mere errors of judgment but seriously undermined
trust and confidence between employer and employee entitling the employer to
accept the breaches and dismiss the employees without notice. Nb. The
decision may have been different if the company had not had written
procedures for this kind of reporting in place though. In Sandwell and West Birmingham Hospitals NHS Trust v
Westwood [2009], the Trust dismissed a nurse summarily for gross
misconduct. However the offence (leaving a patient on a trolley outside
A&E at night) was not listed in its disciplinary policy. The EAT took the
view that this may be a serious professional failing, but it was not gross misconduct. To be gross
misconduct it had to be either a) deliberate wrongdoing; or b) very
considerable negligence. On the facts, the nurse’s conduct was neither. Employers would be well advised to always try to make an
exhaustive list of all the examples of gross misconduct they can possibly
think of in their disciplinary policy.
Ultimately whether or not an offence is gross enough to amount to gross
misconduct will be a decision of the Employment Tribunal. A lot of employers
will set out a non-exhaustive list of examples of gross misconduct in their
disciplinary procedure. That list will often include: ·
Theft from the employer, clients, customers or colleagues. ·
Fraud or deception in the course of employment including making a fraudulent expenses
claim. ·
Assault, fighting or any other violence in the course of
employment. ·
Serious misconduct or criminal acts whether during or outside
the course of your employment bringing the employer into disrepute. ·
Vandalism, damage or sabotage to any property of the employer. ·
Harassment of colleagues, clients, customers or suppliers
whether or not in the course of normal employment including harassment of a
sexual or racial nature, or on the grounds of sexual orientation, religion or
belief, age or disability. ·
Bullying or intimidation without reasonable explanation such as
to cause significant distress to a colleague, client, customer or supplier
whether or not in the course of normal employment. Many
employers will extend that list to cover matters specific to that
organisation, but which are important to them, for example lending a security
pass to colleagues, if security is particularly important. An employer is
more likely to be able to argue that something is gross misconduct, if they
have listed it out in the disciplinary procedure and brought it to the
express attention of the employee. Last
reviewed: July 2010 |
|
|
|
|
Employment
Solicitor Reculver Solicitors Tel
0207 324 6271 Regulated
by the Solicitors Regulation Authority ©
Reculver Solicitors. 2005- |
|