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Gross misconduct
[ch 10: pages 329-330]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” by the employee 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 326), or else the dismissal will be unfair.
A negligent failure to act can amount to gross misconduct where that failure is serious enough to destroy trust and confidence. In Adesokan v Sainsbury’s Supermarkets Limited [2017] EWCA Civ 22, the Court of Appeal upheld the fair dismissal of a senior manager for gross misconduct for failing to intervene to correct a serious mistake by a junior manager. The manager's senior position of responsibility contributed to the finding that the dismissal was fair.
There must always be a proper investigation, and a fair procedure must always be followed, even if there has obviously been serious misconduct. The more serious the consequences for the employee, the higher the standard of investigation needed (see page 332).
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 something is listed in the disciplinary procedure as gross misconduct. The employer must consider the context (section 98(4),ERA). For example:
The claimant, a motor vehicle technician with 42 years’ service and a clean disciplinary record, momentarily lost his cool in an incident on the shop floor and grabbed an apprentice with both hands by the shirt collar. Line management wanted to deal with the matter informally, but HR intervened and insisted on a summary dismissal because the claimant had used physical violence, an act amounting to gross misconduct under the disciplinary policy. The EAT agreed with the tribunal that the dismissal was unfair. Physical violence did take place but HR wrongly decided that since gross misconduct had occurred, the claimant necessarily had to be dismissed. The dismissal was unfair because the employer failed to consider all the circumstances, including the claimant’s exemplary record. However, compensation was cut by 50% due to contributory fault.
Arnold D Clark Automobiles Ltd v Spoor [2017] UKEAT/0170/16/DA