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Gross misconduct
There is no legal definition of “gross misconduct” but certain behaviours, such as dishonesty or fraud, are almost certain to be treated as gross misconduct.
Some employers regard particular kinds of behaviour as gross misconduct because of the potential impact of the conduct on their particular business model. For example, a company that relies heavily on a certain “brand image” may decide it is gross misconduct for employees to make negative comments about the employer in social media settings like Twitter and Facebook. A company wanting to dismiss for gross misconduct in these circumstances would need to spell out clearly in its disciplinary procedure exactly what kind of behaviour can amount to gross misconduct, and draw the rule clearly to employees’ attention. As always, it does not follow that just because the behaviour is listed as gross misconduct in the disciplinary procedure, summary dismissal will be fair. It will depend on the particular circumstances.
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.
If a disciplinary procedure specifies a maximum penalty for an offence that is less severe than dismissal, a tribunal may decide that the employer cannot have intended for that kind of conduct to be treated as gross misconduct:
An NHS Mental Health Trust offered to deal with disciplinary issues, including allegations of bullying and harassment, against a consultant psychiatrist, Dr Sarkar, using its Fair Blame Policy, which is designed 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, the process under the Fair Blame Policy later broke down and Dr Sarkar was suspended. The Trust then added some further, relatively minor, allegations to the charges against Dr Sarkar and set up a full disciplinary panel which dismissed him for gross misconduct.
The Court of Appeal concluded that the dismissal was unfair. This was partly because the Trust had signalled, by offering to deal with the allegations under its Fair Blame Policy, that it regarded the bullying and harassment allegations as minor and only capable of justifying a first written warning. It was not fair, in these circumstances, to dismiss Dr Sarkar for gross misconduct.
Sakar v West London Mental Health NHS Trust [2010] EWCA Civ 289
Another recent Court of Appeal case, this time against the DWP, is also useful:
The DWP dismissed Mrs Graham, a benefits manager with 30 years’ service, for gross misconduct after she helped a young benefits claimant in difficult family circumstances to make a job search. He was a “friend of a friend” of Mrs Graham’s daughter.
Mrs Graham was accused of breaking the DWP’s rules banning staff from dealing with an “acquaintance”. The tribunal found that the DWP’s rules about who was an “acquaintance” were not clear. She was also accused of taking the young man into the staff canteen. She had admitted, at the time, that this was a mistake and the Court of Appeal confirmed that this conduct could not be described as serious misconduct under the DWP’s disciplinary procedure, “let alone gross misconduct”.
The final allegation was that she briefly left the young man alone on her computer while she crossed the room to speak to colleagues, leaving her smart-card unattended. The Court of Appeal said this offence was serious but not gross misconduct, especially since the rules in place at that time on benefit claimants being allowed staff side of the counter were not clear. The DWP’s decision to treat Mrs Graham’s behaviour as gross misconduct was beyond the band of responses available to a reasonable employer and the dismissal was unfair.
Graham v Secretary of State for Work and Pensions [2012] EWCA Civ 903