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Gross misconduct
[ch 10: pages 278-279]Employers have a right to dismiss without warning for gross misconduct, also known as “summary dismissal”. The employment ends immediately on dismissal, with no notice or notice pay. Like any other conduct dismissal, the employer must first show a genuine belief in guilt based on reasonable grounds following a reasonable investigation (British Home Stores Limited v Burchell [1978] IRLR 379).
There must always be a proper investigation and a fair procedure must be followed, even if the misconduct is obvious. Where an employee is plainly guilty but the employer has committed serious procedural breaches, the dismissal is likely to be unfair, but any compensation is likely to be reduced (in some circumstances by up to 100%) in to reflect the fact that the employee contributed to their own dismissal (see page 311).
Even if a clear rule prohibits certain conduct, employers do not necessarily have a free hand to dismiss. The decision must be within the band of “reasonable responses” of an employer (see page 275), as the following first instance decision illustrates:
Mr Stephens, a long-serving employee with a clean disciplinary record, was off sick with stress during a consultation over changes to shift patterns. He felt strongly about this so he created a Facebook page entitled “Halfords workers against working three out of four weekends”. Then he read his employer’s social networking policy warning that negative public statements about Halfords could result in disciplinary action, so he quickly deleted his Facebook page. But he was too late: his employer had already seen it. He was disciplined and dismissed for gross misconduct. The employment tribunal found the dismissal unfair. It was beyond the band of reasonable responses.
Stephens v Halfords PLC (ET/1700796/10) unreported
A dismissal related to drink or drugs may be fair. However, 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 relevant rule, and should conduct a proper investigation. Large employers are normally expected to consult the employee on any dependency problem.
Employers may dismiss fairly for conduct outside work, but only if it relates in some way to work, usually by damaging the employer’s reputation. A fair dismissal requires 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. For more guidance for reps dealing with this type of scenario, see LRD’s booklet Social media, monitoring and surveillance at work.
An employer that wants to control behaviour outside work is under a particularly heavy obligation to spell out exactly what conduct is prohibited and the likely consequences of that conduct (Smith v Trafford Housing [2012] EWHC 3221).
The mere fact that someone 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 contains helpful guidance when representing employees accused of a criminal offence.