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Gross misconduct
[ch 2: pages 14-15]There is no legal definition of “gross misconduct”. As a general rule, if an employer wants to be able to treat particular types of behaviour, such as, for example, criticising your employer on social media, as gross misconduct, they must say so clearly in the written disciplinary procedure, and make sure everyone knows the rules and the severe punishment for breaking them. Some very serious behaviours, such as fraud or dishonesty, are so obviously wrong that the employer will generally be able to treat them as gross misconduct even if they are not mentioned specifically.
Acas lists the following examples as conduct capable of amounting to 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
• serious breach of confidence.
To be gross misconduct, the behaviour should be very serious, amounting to a repudiation by the employee of the employment relationship. In the following example, the behaviour was not serious enough to be gross misconduct:
A health manager at a secure unit, travelling by train, overheard one of the unit’s psychiatrists discussing a patient with a colleague. A confidential report showing the name of another patient was also visible. An inquiry into alleged breaches of patient confidentiality was launched, at which the psychiatrist’s secretary also gave evidence that she sometimes heard train sounds in the background when she typed up medical notes, suggesting that patient records were being dictated on the train. Gross misconduct proceedings were started but the Supreme Court upheld an injunction halting the disciplinary process, ruling that the behaviour was not serious enough to amount to gross misconduct. The breach of confidence was inadvertent, not deliberate. It was not a repudiatory breach of the employment contract.
West London Mental Health NHS Trust v Chhabra [2014] I AER 943
If a disciplinary procedure specifies a maximum penalty for an offence that is below the level of summary dismissal, this can be a good argument that a member who carried out the offence cannot be guilty of gross misconduct. For example:
An NHS Mental Health Trust offered to deal with allegations of bullying against a consultant psychiatrist, Dr Sarkar, under its Fair Blame Policy, which is intended for “fairly low level breaches of conduct or performance standards [which] do not constitute potentially serious or gross offences”. The maximum sanction under the Policy was redeployment to a different part of the Trust and a first written warning. However, when the process broke down, Sarkar was suspended. The Trust then added some relatively minor allegations to the original charges and set up a full disciplinary panel which dismissed him for gross misconduct. The Court of Appeal said the dismissal was unfair. The Trust had signalled, by offering to deal with the allegations under its Fair Blame Policy, that it regarded the bullying allegations as minor and only capable of justifying a first written warning. In these circumstances it was not fair to dismiss Sarkar for gross misconduct.
Sarkar v West London Mental Health NHS Trust [2010] EWCA Civ 289