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Specifying unacceptable conduct
The Acas Code says that, except in cases of gross misconduct, nobody should be dismissed for a first incident of misconduct. Disciplinary rules should distinguish clearly between ordinary misconduct, which will usually result in a warning (sometimes combined with another sanction) and gross misconduct.
The rules should spell out what conduct amounts to gross misconduct, capable of resulting in summary dismissal (i.e. dismissal without notice or notice pay). The following case provides a useful illustration:
Mr Lock was dismissed for gross misconduct after he asked a child who did not have enough money to pay an excess fare to leave a train, in circumstances where the child was left unaccompanied at an unfamiliar station. The employer said this was a breach of the rules on excess fares. However, there was no rule that this type of error was gross misconduct and this was Mr Lock’s first offence. The Employment Appeal Tribunal (EAT) held that the fact that Mr Lock had never been told that the breach of the rule could amount to gross misconduct made the dismissal unfair.
Lock v Cardiff Railway Co [1998] IRLR 358
Trusthouse Forte’s disciplinary procedure classified smoking in the non-smoking area as an act of minor misconduct only, but it also put up a notice stating that smoking in the non-smoking area was gross misconduct. Mr Adonis’s dismissal for smoking in the non-smoking area was unfair, because even though he knew he was not allowed to smoke in the non-smoking area, he thought it would result only in a warning, rather than dismissal
Trusthouse Forte (Catering) Ltd v Adonis [1984] IRLR 382
Usually, the employer lists the kinds of offence regarded as both ordinary misconduct and gross misconduct, although it does not follow that just because conduct does not appear on the list, it can never result in disciplinary action. Equally, just because an offence is listed as a serious disciplinary matter in a disciplinary procedure, it does not follow that severe disciplinary action will always be justified. Each case depends on its own particular facts.