Gross misconduct 



Employers have a right to dismiss without warning for gross misconduct, also known as “summary dismissal”. Gross misconduct is misconduct 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.


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 the examples on page 362).



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 in their workplace, they should spell this out in their disciplinary procedure and bring it to employees’ attention, for example, through induction and training. Otherwise, a dismissal is likely to be unfair.



For a dismissal based on gross misconduct to be fair, the employer must show a genuine belief in guilt based on reasonable grounds following a reasonable investigation (British Home Stores Limited v Burchell [1978] IRLR 379). To test whether the dismissal decision was fair the tribunal will look at the facts known (or that should have been known) to the employer at the time of dismissal, not at information that emerges afterwards (Mears Limited v Brockman [2015] UKEAT/0243/14/BA).



The employer does not have to investigate every single line of defence put forward, but the overall investigation must be reasonable (Shrestha v Genesis Housing Association Limited [2015] EWCA Civ 94).



A decision to dismiss without notice or notice pay must be within the “band of reasonable responses” of an employer, or the dismissal will be unfair (see page 355). 



It is gross misconduct to forward an obscene and pornographic email at work (Williams v Leeds United Football Club [2015] EWHC 376).