Gross misconduct is behaviour from an employee, which is so serious that it affects the employer/employee relationship so badly that instant dismissal without notice or pay in lieu of notice is required.
It is not enough for an employer just to label something as gross misconduct to get out of paying notice. Falconers Law can help employee’s challenge decisions that have only been labelled as “gross misconduct” for convenience.
Some examples of gross misconduct may be so well known that there is no need to set them down, say: theft from an employer or assault of an employer or work colleague. As a rule you need to give employees a clear indication of the type of behavior which is unacceptable and you consider to be gross misconduct in your company. You can provide this information in the contract of employment or in a staff handbook. Identifying such behavior at the start of employment will help you to prove at a later date that you do not accept this behaviour. Some common examples could be, intoxication (from drink or drugs), fighting or other physical abuse, indecent behavior, theft, dishonesty, sabotage, serious breaches of health and safety rules, offensive behavior (such as discrimination, harassment, bullying, abuse and violence) and gross insubordination gross misconduct.
Employers may want to specify other offences within the company, depending on the nature of your business: for example, accepting or offering bribes, downloading pornography, downloading software from the internet or using personal software (to protect the business against legal risks, and the risk of importing viruses), misusing confidential information or setting up a competing business. These are general and could be made more specific and tailored to your business. Falconers Law can advise employers and help tailor terms for your particular needs.
Other offences which may be regarded as less serious may be related to work and work performance - for example poor timekeeping, absenteeism, use of workplace facilities, personal appearance, negligence or sub-standard work. These are usually not considered gross misconduct, but, you may want to state that repeatedly disobeying the rules could add up to a more serious offence.
Employers should take caution when dealing with an employee under the influence of alcohol or drugs. If the employee is an alcoholic or drug addict, then this may be better dealt with as a capability issue and not as gross misconduct.
If the employee makes a claim to the employment tribunal hearing, then you will need to provide evidence that that the action taken was appropriate and justified as being reasonable. It would be advisable to make a note of all the offences, time and dated, this could be used at a later date.
The company’s disciplinary procedure and how it is followed must be fair and reasonable. The ACAS guide can help you with guidelines and requirements you need to meet when setting the standards in your workplace. Falconers Law can advise employers and help tailor terms for use. It might not always be suitable for the employee to be at work whilst the gross misconduct is being investigated, so you might need to consider temporary suspension, this should be on full pay.
Falconers Law can advise you on gross misconduct in the workplace whether in Aberdeenshire or further afield. We can advise you on the most up to date information and give you help and guidance to make sure you follow correct procedures to ensure you have no reason to be taken to an employment tribunal hearing, or if you are, that you can defend your decision.
