Does gross misconduct always lead to dismissal?

Does gross misconduct always lead to dismissal?

Both organisations and individuals may wonder ‘does gross misconduct always lead to dismissal?’ The short answer is no. This is because it is for the disciplinary panel to decide what, if anything, the disciplinary sanction should be. That decision should be made based on all the evidence and a decision to dismiss should not be automatic. This blog will explore gross misconduct, it will consider whether or not the disciplinary process should be different if gross misconduct is alleged, and provide an overview of what steps should be taken to ensure that a person accused of gross misconduct is treated fairly.

What is gross misconduct?

It is common for the term gross misconduct to be used in documentation but what does it mean? Gross misconduct is simply a classification which indicates that the alleged misconduct is regarded by the organisation as falling into the most serious category.

There is a common misconception that if people are facing allegations of gross misconduct, and the disciplinary hearing does not go their way, dismissal is inevitable. This is not so. It is the case that, by regarding the allegations as gross misconduct, dismissal is one of the potential sanctions available to the disciplinary panel, but that does not mean that dismissal is the inevitable outcome. For information on how to be successful at a disciplinary hearing (whether you are an individual or an organisation) read our blog by clicking on the link.

There may be general agreement about what does and does not potentially constitute gross misconduct, but that is a question for the particular organisation to decide. For example, one organisation may think that the alleged misconduct would fall into the category of gross misconduct, whereas another organisation may not.

Is the disciplinary process different when it relates to gross misconduct?

It is common for both organisations and individuals to believe that the more serious the alleged offence the less need there is to go through a disciplinary process. For example, an organisation may think there is no need to go through an investigation because events such as aggressive behaviour were witnessed, or perhaps it was thought there was no need to explore why items went missing because the person in charge instinctively knew who the culprit was. This approach could not be more wrong, and could well have disastrous consequences.

The answer to the question ‘is the disciplinary process different when it relates to gross misconduct? is essentially no. The central questions for the disciplinary panel to decide are the same regardless of whether gross misconduct is referred to or not. The questions are essentially, does the disciplinary panel believe that the individual is guilty of what is alleged? If so, are there reasonable grounds for such a belief: was there evidence to support that belief, and what (if anything) would be an appropriate sanction in the circumstances?  The disciplinary process should always have an investigation phase, a hearing and the opportunity to appeal, whether the allegations are categorised as gross misconduct or not.  However, the greater the potential consequences, e.g. of dismissal, the greater the responsibility of the organisation to ensure that the process is thorough and fair. This means that particular care should be taken when overseeing a disciplinary process where gross misconduct comes into play.

To make reference to the basic examples above, could there be more to that angry scene than meets the eye? Could someone else have been responsible for the missing items? Would it be reasonable to decide what happened without delving any deeper?

How should an organisation decide whether or not misconduct should be categorised as gross misconduct?

1. Consider what the organisation’s documentation says about gross misconduct

As was said earlier, one organisation may regard certain conduct as gross misconduct while another may not. That is entirely reasonable. What an organisation does or does not regard as gross misconduct may depend on a number of factors such as the culture of the organisation, the industry it operates in etc.

One way for an organisation to spell out how it expects staff to behave is to literally provide such detail in documentation, such as in an employee handbook (for more information on an employee handbook, read our blog What is an employee handbook?).

Whether you are an individual or an organisation, take a look at the organisation’s documentation to see if there is anything about gross misconduct in there. Plotkin & Chandler has expertise in drafting documentation which sets out the expectations of the organisation in terms of what is unacceptable, and what the potential consequences of engaging in unacceptable behaviour are.

2. Provide training to ensure consistency relating to the disciplinary process

It should always be for the particular disciplinary panel to decide what the appropriate outcome should be after hearing all the evidence. However, it is also important that  consistency is achieved with regard to the process to ensure fairness. For example, it is important that everyone on the disciplinary panel approaches it in the same way, such as knowing how to conduct a disciplinary hearing etc.  Plotkin & Chandler has expertise in delivering training which ensures that a disciplinary process is handled in a way that is considered, transparent, and fair.

3. Consider what other material says

Organisations frequently communicate messages to stakeholders. Perhaps those messages are expressed in team meetings, marketing material or financial reports. This material is likely to indicate what the organisation stands for and the behaviours that are expected of those working for it.

What steps should be taken to ensure that a person accused of gross misconduct is treated fairly?

1. Ensure there is an investigation phase

As referred to earlier, it is particularly important to be thorough when allegations are categorised as gross misconduct, and an effective disciplinary investigation is a key part of the process. It is concerned with finding out what happened, and indicates that any action taken is not a foregone conclusion.

2. Put time and care into the disciplinary hearing

Many people associate gross misconduct with dismissal but, as has been said throughout this blog, it is the disciplinary panel who decides what the appropriate sanction should be. When people are faced with the possibility of dismissal it is particularly important to provide an opportunity for them to have their say, challenge evidence etc.

3. Provide an opportunity to appeal

An appeal, overseen by a different person, provides another perspective and is a further way to show that the decision making process was fair.

If you are an individual who is facing a disciplinary hearing where gross misconduct is alleged against you, or you wish to discuss pursuing an Employment Tribunal claim we can help. We work exclusively in the areas of HR and employment law and can provide a full range of services from providing general guidance to Employment Tribunal representation.

If you are an organisation that finds itself having to navigate through the disciplinary process, we offer a range of services such as those above, to ensure that the process is as smooth and effective as possible.

Whether you are an individual or an organisation, if you would like to discuss your needs and the ways in which we can help, call us on 020 3923 8616 or email us on info@plotkinandchandler.com










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