![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201305.jpg)
Gross misconduct
Employers have a right to dismiss without warning for offences amounting to gross misconduct. A dismissal for gross misconduct is also known as a “summary dismissal”. The employment ends immediately on dismissal, with no notice or notice pay. Like any other conduct dismissal, the employer must show a genuine belief in guilt based on reasonable grounds after a reasonable investigation (British Home Stores Limited v Burchell [1978] IRLR 379).
There are no circumstances in which a failure to investigate and follow a fair procedure can be justified, no matter how flagrant or obvious the misconduct. However, even though a misconduct dismissal may be procedurally unfair, a tribunal satisfied that on balance, gross misconduct took place is likely to order up to a 100% reduction in any compensation awarded, on the basis that the employee contributed to his own dismissal.
An employer is not required to reach a criminal standard of proof. All that is needed is genuine belief on reasonable grounds. The tribunal is not allowed to revisit the facts and decide whether the employee was actually guilty of the charges of misconduct against them, or substitute its view for that of the employer (London Ambulance Service NHS Trust v Small [2009] IRLR 563).
But even where there is a clear rule that prohibits certain conduct, employers do not necessarily have a free hand to dismiss. The decision must be within the band of “reasonable responses”. For example:
An employee with a clean disciplinary record, off sick with stress, put up a Facebook page entitled “Halfords workers against working three out of four weekends”, because he wanted to encourage colleagues to object to shift changes the company was consulting over. Then he read his employer’s social networking policy which warned that negative public statements about Halfords could result in disciplinary action, so he took down the page. But his employer had already seen it and he was disciplined and dismissed for gross misconduct. The employment tribunal found the dismissal unfair and outside the range of reasonable responses of an employer.
Stephens v Halfords PLC (ET/1700796/10) unreported
A dismissal related to drink or drugs may be fair, but as always, the employer must have a clear policy and communicate clearly to employees that breach of the policy can result in dismissal. Before any dismissal, the employer should have spelled out the rule barring substance use at work, and should conduct a proper investigation. Large employers would normally be expected to consult the employee on any dependency problem.
Employers may dismiss fairly for conduct outside work, but only if the conduct is in some way related to work, usually by damaging the employer’s reputation. For the dismissal to be fair, there must be evidence of a genuine risk of reputational damage. A good example of dismissal for conduct outside work is the spate of recent dismissals for criticising the employer using social media, such as Facebook. (See LRD’s Booklet Social media, monitoring and surveillance at work).
Where conduct takes place outside work, there is a particularly heavy duty on the employer to make sure that the rules are clear as to what conduct is prohibited and as to the likely consequences of that behaviour (Smith v Trafford Housing [2012] EWHC 3221).
The mere fact that an employee has been charged with a criminal offence is not justification for dismissal without an investigation (Securicor Guarding v R [1994] IRLR 633). What matters is the extent to which the offence is likely to impact on the employment. The Acas Guidance on Discipline and Grievance at Work (see below) contains helpful guidance when representing employees accused of a criminal offence.