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Most people would feel that they know it when they see it. However gross misconduct is misconduct by the employee so serious that it completely undermines the employer’s trust and confidence in the employee to perform his/her duties. In other words it has to be pretty serious. When gross misconduct is found (after a full and fair disciplinary procedure), the breach is considered so serious as to bring the employment relationship to an end summarily without notice.
How gross does something have to be for it to amount to gross misconduct? In Dunn v AAH Ltd , the Finance Director and MD were dismissed for failing to follow company procedures to report significant risk issues to the parent company, including fraud, which they had became aware of. The Court of Appeal held that these failures were not mere errors of judgment but seriously undermined trust and confidence between employer and employee entitling the employer to accept the breaches and dismiss the employees without notice. Nb. The decision may have been different if the company had not had written procedures for this kind of reporting in place though.
In Sandwell and West Birmingham Hospitals NHS Trust v Westwood , the Trust dismissed a nurse summarily for gross misconduct. However the offence (leaving a patient on a trolley outside A&E at night) was not listed in its disciplinary policy. The EAT took the view that this may be a serious professional failing, but it was not gross misconduct. To be gross misconduct it had to be either a) deliberate wrongdoing; or b) very considerable negligence. On the facts, the nurse’s conduct was neither.
Employers would be well advised to always try to make an exhaustive list of all the examples of gross misconduct they can possibly think of in their disciplinary policy. Ultimately whether or not an offence is gross enough to amount to gross misconduct will be a decision of the Employment Tribunal. A lot of employers will set out a non-exhaustive list of examples of gross misconduct in their disciplinary procedure. That list will often include:
- · Theft from the employer, clients, customers or colleagues.
- Fraud or deception in the course of employment including making a fraudulent expenses claim.
- Assault, fighting or any other violence in the course of employment.
- Serious misconduct or criminal acts whether during or outside the course of your employment bringing the employer into disrepute.
- Vandalism, damage or sabotage to any property of the employer.
- Harassment of colleagues, clients, customers or suppliers whether or not in the course of normal employment including harassment of a sexual or racial nature, or on the grounds of sexual orientation, religion or belief, age or disability.
- Bullying or intimidation without reasonable explanation such as to cause significant distress to a colleague, client, customer or supplier whether or not in the course of normal employment.
Many employers will extend that list to cover matters specific to that organisation, but which are important to them, for example lending a security pass to colleagues, if security is particularly important. An employer is more likely to be able to argue that something is gross misconduct, if they have listed it out in the disciplinary procedure and brought it to the express attention of the employee.
We are unfair dismissal solicitors and gross misconduct lawyers. Call us today for a free initial chat with a solicitor for some more specific advice on disciplinary procedures. Telephone 0207 118 0950. For more advice on fair disciplinary procedures, click here.