Gross misconduct 





Employers have a right to dismiss without warning for gross misconduct, also known as “summary dismissal”. Gross misconduct is misconduct that is so serious that it amounts to a “repudiation” of the employment contract. The employment ends immediately on dismissal, with no notice or notice pay.
The dismissal decision must be within the “band of reasonable responses” (see page 342), or else the dismissal will be unfair. 



A negligent failure to act can amount to gross misconduct as long as that failure is serious enough to destroy trust and confidence (Adesokan v Sainsbury’s Supermarkets Limited [2017] EWCA Civ 22). 


There must always be a proper investigation, and a fair procedure must always be followed, even if the misconduct is serious and the events undeniable. The more serious the consequences for the employee, the higher the standard of investigation needed (see page 348). 


In many public sector organisations, there are separate procedures governing issues of capability and conduct. The wrong choice of procedure is likely to be a breach of contract and can result in an unfair dismissal.





Acas lists the following examples of conduct capable of being gross misconduct:




• theft or fraud;





• physical violence or bullying;





• deliberate and serious damage to property;





• serious misuse of an organisation’s property or name;





• deliberately accessing internet sites containing pornographic, offensive or obscene material;


• serious insubordination;





• unlawful discrimination or harassment;





• bringing the organisation into serious disrepute;





• serious incapability at work brought on by alcohol or illegal drugs;





• causing loss, damage or injury through serious negligence;





• a serious breach of health and safety rules; and





• a serious breach of confidence.





If an employer regards a specific kind of behaviour as gross misconduct, they should spell this out clearly in their disciplinary procedure and bring it to employees’ attention, for example, through induction and training. Otherwise, a dismissal is likely to be unfair.



Summary dismissal will not be fair just because the offence is identified in the disciplinary procedure as amounting to gross misconduct. The employer must consider all the relevant circumstances (Arnold D Clark Automobiles Ltd v Spoor [2017] UKEAT/0170/16/DA).